MARRIAGE  LEGISLATION  IN  THE 
NEW  CODE  OF  CANON  LAW 


MARRIAGE  LEGISLATION 
IN  THE  NEW  CODE  OF 

CANON  LAW 


BY 
VERY  REV.  H.  A.  AYRINHAC,  S.S.,  D.D.,D.C.L. 

President  of  St.  Patrick's  Seminary,  Menlo  Park,  Cal. 

Professor  of  Moral  Theology,  Pastoral  Theology, 

and  Canon  Law 


NEW  YORK,  CINCINNATI,  CHICAGO 

BENZIGER  BROTHERS 

PRINTERS  TO  THE  HOLT  APOSTOLIC  SEK 


fltbll  ©l>etat. 

ARTHUR  J.  SCANLAN,  S.T.D., 

Censor  Librorum. 


Imprimatur. 

•I- JOHN  CARDINAL  FARLEY, 

Archbiihop  nf  Nne  York. 


NEW  YORK,  September  2S,  1918. 


COPYRIGHT,    1918,  BY  BEKZIOER  BROTHEB8 


INTRODUCTION 

IN  THE  SURETY  that  a  worthy  and  useful  work  is  here- 
with offered  to  Catholic  readers,  I  authorize  and 
gladly  recommend  the  publication  of  Dr.  Ayrinhac's 
"Marriage  Legislation  in  the  New  Code  of  Canon 
Law."  Coming  from  the  pen  of  one  whose  equip- 
ment combines  a  technical  training  at  Rome  with  the 
growth  of  twenty-five  years  of  experience  in  class- 
work  and  with  the  opportunities  incident  to  the  func- 
tion of  Vindex  Vinculi  in  our  Metropolitan  Court,  it 
bears  the  marks  of  an  authority  that  professors  in  the 
seminary  and  officials  of  the  chancery  will  readily 
recognize  and  appreciate. 

It  comes,  too,  at  an  opportune  moment.  Tragic 
events  of  to-day,  the  bitter  fruit  of  four  centuries 
of  lax  thinking  among  non-Catholic  schoolmen  and 
proportionately  lax  living  among  their  disciples,  have 
shown  that  the  ethical  order  must  be  refashioned  in 
the  ancient  Christian  pattern  if  the  race  of  men  is 
to  sustain  itself  even  physically,  the  more  so  if  there 
is  to  be  real  moral  advancement.  The  world  will 
not  come  back  to  Christ,  nor  be  made  subject  to  His 
reign  by  any  influence  the  world  itself  may  initiate ; 
the  impulse  must  be  from  without — the  force  must 
come  from  above.  The  Church  of  Christ,  which  is 
not  of  this  world,  must  bring  from  on  high  the 
heavenly  grace  that  will  heal  the  nations.  Her  mis- 
sion is  to  teach,  her  remedy  for  the  world's  distemper 
is  primarily  the  imparting  of  the  form  of  sound  words 

5 


6  INTRODUCTION 

which  she  has  heard  in  faith,  for  only  to  minds  that 
know  God  and  His  ways  can  exhortation  to  righteous- 
ness be  addressed.  In  proclaiming  anew  the  system 
of  law  whereby  her  visible  life  has  been  erected  and 
directed  through  the  centuries,  she  inculcates  forcibly 
the  notion  of  moral  obligation;  she  appears  before 
the  world  as  the  arbiter  of  man's  conscience,  the  cus- 
todian and  interpreter  of  the  "shalt"  and  "shalt  not" 
of  right  reason ;  for  she  is  well  aware  that  knowledge 
is  the  first  step  in  the  way  of  salvation,  and  she 
takes  the  step  bravely,  saying  with  the  voice  of  au- 
thority: Hoc  fac  et  vives. 

If  ever  men  felt  the  need  of  such  knowledge,  of 
such  secure  informing  of  their  minds  in  the  right 
notion  of  law,  they  feel  it  now,  when  false  science 
and  the  lawless  devices  of  science  are  bringing  the 
ruins  of  civilization  crashing  at  their  feet.  The 
sacred  institution  of  marriage  has  not  been  spared 
in  the  widespread  catastrophe.  The  assault  upon 
its  laws,  whether  in  academic  literature  or  civil  code, 
or  popular  story,  has  brought  the  inevitable  reaction, 
and  people  think  lightly  or  not  at  all  of  the  bond  that 
binds  husband  and  wife  with  an  eternal  and  divine 
sanction.  Practical  disregard  of  the  moral  law  has 
wrought  in  modern  paganism  exactly  the  same  para- 
dox and  absurdity  that  marked  the  culture  of  those 
ancients  who  changed  the  truth  of  God  into  a  lie; 
their  foolish  heart  is  darkened;  they  serve  the  crea- 
ture rather  than  the  Creator. 

Because  the  present  work  sets  forth  boldly  the 
notion  of  Christian  matrimonial  law,  it  comes  as  a 
thing  of  blessing.  The  author  has  given  succinctly 


INTRODUCTION  7 

but  clearly  the  several  stages  traversed  by  the  canons 
of  the  Church  as  they  grew  to  the  fulness  of  form 
and  content  in  which  the  Codex  now  presents  them. 
Throughout,  the  concept  of  marriage  as  a  natural 
legal  institution  sanctified  in  the  grace  of  Christ  and 
protected  in  its  sacred  character  by  the  enactments 
of  Popes  and  Councils,  is  ably  delineated  and,  where 
necessary,  defended.  To  the  exposition  of  the  sev- 
eral canons  Dr.  Ayrinhac  has  brought  a  wide  erudi- 
tion and  a  competent  practical  experience  that  will 
make  his  book  invaluable  to  the  clergy  in  parish 
work,  as  well  as  to  the  professor  and  student  in  the 
seminary.  We  pray  upon  it  ardently  the  blessings 
that  befit  so  high  an  effort  in  the  cause  of  Christian 
truth  and  Christian  law. 

^EDWARD  J.  HANNA, 
Archbishop  of  San  Francisco. 

October  4,  1918. 


FOKEWOKD 

Canonists  will,  no  doubt,  give  us,  before  long, 
scientific  commentaries  on  the  New  Code  of  Canon 
Law.  Meanwhile,  it  was  thought  that  a  brief  ex- 
planation, incomplete  and  fragmentary  though  it  be, 
of  that  part  of  the  Code  which  concerns  the  sacrament 
of  marriage  might  be  of  some  service  to  the  busy 
parish  clergy  who  have  to  apply  the  law  without 
delay. 

The  changes  in  the  matrimonial  legislation,  al- 
though not  very  numerous,  are  of  real,  practical 
importance;  and,  in  spite  of  the  efforts  made  by  the 
legislator  to  avoid  obscurity  or  indefiniteness,  the 
interpretation  and  application  of  a  new  law  is  never 
without  some  difficulties.  The  following  pages  are 
published  in  the  hope  of  being  of  some  assistance  in 
that  work. 

The  text  itself  of  the  law  is  here  given  in  the 
original,  in  order  that  every  one  may  study  it  for  him- 
self and  refer  to  it  as  to  the  only  authoritative 
norm. 

An  English  translation  is  added  for  the  benefit 
of  possible  readers  who  might  not  be  familiar  with 
Church  Latin. 

In  the  explanations  some  stress  is  laid  on  the  his- 
torical development  of  the  legislation  to  show  the 
continuity  of  the  Church's  discipline  under  acci- 
dental changes.  It  helps  also  to  determine  the  mean- 
ing of  the  new  law,  to  understand  its  real  spirit, 
and  to  see  how  it  differs  from  the  old  one.  Those 


10  FOREWORD 

differences  are  pointed  out  briefly  without  entering 
into  details  which  all  students  of  Catholic  theology 
are  acquainted  with  or  which  can  easily  be  found 
in  the  familiar  text-books. 

There  will  soon  be  decisions  of  Eoman  Congre- 
gations in  answer  to  questions  proposed  or  difficulties 
submitted  to  them.  Some  of  the  interpretations  or 
conclusions  adopted  here  may  have  to  be  modified. 
Although  not  without  solid  foundation,  as  it  seems, 
they  can,  under  the  circumstances,  be  only  of  a  provi- 
sional character. 
SOURCES  : 

Codex  Juris  Canonici. 

Corpus  Juris  Canonici. 

Acta  Apostolicae  Sedis. 

Acta  Sanctse  Sedis. 

Bullarium     Komanum,     Taurinensis     editio, 

1858—1871. 
Collectanea    S.    Congregationis    de    Propaganda 

Fide,  Komse,  1893—1907. 

Sacrosancta  Concilia  ad  regiam  editionem  exacta, 
studio  Philippi  Labbei  et  Gabrielis  Cossartii, 
Lutetise  Parisiorum,  1671. 

Histoire  des   Conciles,   C.   J.   Hefele.     Nouvelle 
traduction  par  Dom  H.  Leclerq.    Paris,  1907- 
1917. 
AUTHORS  PRINCIPALLY  CONSULTED: 

P.  Gasparri,  Tractatus  Canonicus  de  Matrimonio. 

Paris,  1891. 

F.  X.  Wernz,  S.J.,  Jus  Decretalium,  Tom.  IV; 
Jus  Matrimoniale  Ecclesiae  Catholic®.  Prati, 
1911. 


FOREWORD  11 

De  Smet,   Betrothment  and  Marriage.     Bruges, 

1912. 
Ad.  Tanquerey,  S.  S.,  Synopsis  Theologise  Moralis 

et  Pastoralis,  T.  Ill  (A).     Tournai,  1907. 
J.   De  Becker,   De   Sponsalibus  et   Matrimonio. 

Louvain,   1913. 
A.    Esmein,    Le    Mariage    en    droit    Canonique. 

Paris,  1891. 

PERIODICALS  : 

Nouvelle  Revue  Theologique,  Paris-Tournai. 

Le  Canoniste  Contemporain,  Paris. 

II  Monitore  Ecclesiastico,  Roma. 

The  Ecclesiastical  Review,  Philadelphia. 

The  Irish  Theological  Quarterly,  Dublin. 

A  more  complete  bibliography  will  be  found  in 
the  works  of  Wernz,  De  Smet,  etc. 

MARRIAGE    LEGISLATION    IN    THE   NEW    CODE    OF 

CANON  LAW  :  PLACE  AND  DIVISION 

The  legislation  on  marriage  in  the  New  Code  of 
Canon  Law  is  found  in  the  third  book,  which  treats 
of  ecclesiastical  things,  De  Rebus,  and  is  divided 
into  six  parts,  dealing  with  the  Sacraments,  with 
Sacred  Times  and  Places,  Divine  Worship,  etc.  The 
first  part  has  seven  titles,  devoted  one  to  each  sacra- 
ment. The  last  one  is  taken  up  with  the  sacrament 
of  marriage.  It  is  subdivided  into  twelve  chapters, 
preceded  by  a  few  preliminary  canons. 

In  a  short  Introduction,  the  legislator  gives  the 
nature,  ends,  properties,  and  main  divisions  of  mar- 
riage; he  determines  the  authority  that  regulates  it 
and  defines  the  canonical  value  of  betrothals. 


12  FOREWORD 

In  the  twelve  chapters  are  treated  successively,  and 
in  a  logical  order,  the  following  questions : 

What  should  be  done  before  celebrating  a  marriage 
in  order  principally  to  ascertain  the  freedom  of  the 
parties  ? 

The  impediments  which  may  be  an  obstacle  to  the 
marriage. 

Marriage  itself:  its  essential  element  the  consent. 

The  form  of  marriage. 

Marriages  of  conscience. 

Time  and  place  of  celebration  of  marriage. 

Effects  of  marriage. 

Dissolution  of  marriage,  partial  and  total. 

Revalidation  of  marriage,  simple  and  in  radice. 

Second  marriages. 


CONTENTS 


INTRODUCTION 5 

FOREWORD 9 


PRELIMINARY  NOTIONS 

NATURE,  END,  PROPERTIES,  VARIOUS 
KINDS  OF  MARRIAGE;  AUTHORITY 
THAT  GOVERNS  IT;  CANONICAL  VALUE 
OF  BETROTHMENTS. 

I.  Nature  of  Christian  Marriage     .      .      .      .       21 
II.  End  and  Properties  of  Marriage  ....       23 

III.  Marriage  Favored  by  Law 25 

IV.  Different  Kinds  of  Marriage 26 

V.  Authority  that  Regulates  Marriage    .  28 


i.°  Marriage  of  Baptized  Persons 
2.°  Marriage  of  Unbaptized  Persons 
VI.  Promises  of  Marriage,  Betrothals 
I.  Betrothal  as  a  Natural  Contract  . 
II.  Betrothals  and  Canon  Law     . 

A.  The  Ancient  Law  of  the  Church 


29 
31 
33 
35 
36 
36 


B.  Promises  of  Marriage  and  the  Present 

Legislation 38 

VII.  Instructions  on  Marriage  and  Marriage  Im- 
pediments     . 41 

CHAPTER  I 

PRELIMINARIES  TO  THE  CELEBRATION  OF 
MARRIAGE  AND  PARTICULARLY  THE 
MARRIAGE  BANNS. 

General  Principle 43 

I.  Investigation  by  the  Pastor 44 

i.°  Freedom  and  Instruction  of  the  Parties      44 
2.°  Baptism  and  Confirmation  .     .     ,     ,       50 
13 


14  CONTENTS 

II.  The  Banns 51 

A.  Former  Discipline 51 

B.  The  Present  Law 53 

i.  The  Law  Itself ,  53 

II.  Mode  of  Publication 53 

i.°  Place 53 

2.°  Time 56 

3.°  Form 57 

m.  Publications  of  Mixed  Marriages     .      .  59 

"    iv.  Duty  of  the  Faithful 60 

v.  Dispensation 61 

vi.  Notification 63 

vii.  Sanction 63 

III.  Results  of  the  Investigation  and  Publications  .  64 

i.°  Delay  Required 64 

2.°  Impediments  Discovered 65 

IV.  The  Vagi      .     . 68 

V.  Instructions  to  the  Spouses 69 

VI.  Consent  of  Parents 69 


CHAPTER  II 

OF  IMPEDIMENTS  IN  GENERAL;  NATURE, 
SPECIES,  POWER  TO  ESTABLISH,  ABRO- 
GATE, DISPENSE  FROM,  THEM 

I.  Nature:   General  Principle      ....  73 

II.  Species 74 

l.°  Prohibitive  or  Diriment  Impediments  .  74 

2.°  Public  and  Occult  Impediments  .      .  75 

3.°  Other  Impediments 76 

III.  Authority  to  Constitute  Impediments  .      .  76 
i.°  The  Supreme  Ecclesiastical  Authority  76 
2.°  The  Power  of  Ordinaries  ....  77 

IV.  Power  of  Abrogating,  Derogating,  or  Dis- 

pensing from,   Impediments        ...  79 

A.  Former  Discipline_ 80 

B.  Present  Discipline 82 

V.  Custom  and  Impediments  .....  82 


CONTENTS  15 

VI.  Classification  of  Impediments  ....  84 

VII.  Powers  of  Dispensing  Granted  by  Common 

Law  to  Ordinaries  and  Priests  ...  86 
i.°  In  Cases  of  Danger  of  Death  .      .      .86 

A.  Powers  granted  to  Ordinaries  .      .  86 

B.  Powers  granted  to  Priests  ...  88 
2.°  In  Cases  of  Urgent  Necessity  ...  90 

VIII.  Dispensations  for  the  Internal  Forum     .  94 
IX.  Intervention  of  the  Holy  See  ....  94 

X.  Dispensation  from  Several  Impediments  in 

the  Same  Case 96 

XI.  Dispensation  when   One  of   the   Impedi- 
ments is  Reserved  to  the  Holy  See  .      .  97 
XII.  Legitimation  of  Children 98 

XIII.  Error  in  Dispensations  from  Consanguinity 

or  Affinity 100 

XIV.  Implied  Dispensation  from  an  Impediment 

of  Crime 101 

XV.  Obreption  and  Subreption  in  Dispensations  103 

XVI.  Execution  of  Dispensations  by  Ordinaries  105 

XVII.  Taxes  and  Expenses 108 

XVIII.  Mention  of  Delegation  when  Dispensing  .  1 10 


CHAPTER  III 

PROHIBITIVE  IMPEDIMENTS 

I.  Vow in 

II.  Legal  Relationship 113 

III.  Mixed  Religion 113 

Preliminary  Notions 113 

i.°  Existence  of  the  Impediment  of  Mixed  Re- 
ligion         114 

2.°  Dispensations  from  the  Impediment    .      .  117 
3.°  Conversion  of  the  non-Catholic  Party      .  123 
4.°  Prohibition    to   Appear   before    the   non- 
Catholic  Minister 124 

5.°  Duties  of  Ordinaries  and  Other  Pastors  of 

Souls 126 


16  CONTENTS 

IV.  Unworthiness 130 

i.°  Unworthiness  by  Reason  of  Apostasy  or 

Affiliation  with  Forbidden  Societies     .  130 

2.°  Public  Sin  and  Censure      .      .      .      .  •  .  132 

CHAPTER  IV 
DIRIMENT  IMPEDIMENTS 

I.  Age 136 

II.  Impotency 138 

i.°  Nature  and  Species  of  Impotency  .      .  139 

2.°  Annulling  Effect 140 

3  °  Proof  of  the  Impediment    .      .      .      .  141 

III.  Previous  and  Existing  Marriage     .      .      .  142 

IV.  Disparity  of  Worship 147 

i.°  Origin  of  the  Impediment    .      .      .      .  148 

2.°  Nature  and  Extent  of  the  Impediment  149 

3.°  Applications 150 

4.°  Conditions  for  Dispensation       .      .      .  153 

V.  Sacred  Orders 155 

VI.  Solemn  Vows 156 

VII.  Abduction 158 

A.  Ancient  Discipline 158 

B.  Present  Discipline 160 

i.°  Conditions  for  the  Impediment  .      .  161 

2.°  Extent  of  the  Impediment  .      .      .  162 

3.°  Dispensation  from  the  Impediment  162 

VIII.  Crime 163 

A.  Origin  of  the  Impediment  .      .      .      .  163 

B.  Present  Discipline 164 

i.°  Conditions  for  the  Impediment  .      .  165 
2.°  By  Whom  is  the  Impediment  In- 
curred?        166 

3.°  Dispensation  from  the  Impediment  166 

IX.  Consanguinity 166 

i.  General  Notions 166 

1.  Nature  of  Consanguinity  or  Blood  Re- 

lationships           1 66 

2.  Determination  "and  Multiplication  of 

Relationships     .,,,,.  167 


CONTENTS  17 

n.  The  Impediment  .     .     .     .     .     .     .  169 

A.  Ancient  Discipline 169 

B.  Present  Discipline 172 

i.°  Extent  of  the  Impediment     .      .  172 

2.°  Dispensation  from  the  Impediment  173 

X.  Affinity 174 

A.  Former  Discipline 174 

B.  Present   Discipline 176 

I.  Nature  of  the  Impediment  .      .      .  176 
II.  Extent  and  Multiplication  of  the  Im- 
pediment        177 

ill.  Dispensation  from  the  Impediment  178 

XL  Public  Decency 179 

A.  Former  Discipline 179 

B.  Present  Discipline 181 

XII.  Spiritual  Relationship 182 

A.  Origin  of  the  Impediment  .      .      .      .  182 

B.  Present  Discipline 184 

XIII.  Legal  Relationship 185 

A.  Origin  of  the  Impediment  .  •  .      .      .  185 

B.  Present  Legislation 186 

CHAPTER  V 

OF  THE  MATRIMONIAL  CONSENT 
I.  The   Consent    Itself;    Its   Importance   and 

Qualities 189 

II.  Obstacles  to  Valid  Consent:  Ignorance,  Er- 
ror, Simulation,  Violence,  or  Fear     .      .  191 

i.°  Ignorance 191 

2.°  Error 193 

A.  Error   of    Fact — as   to   Person   or 

Quality 193 

B.  Error  of  Law — as  to  Properties  of 

Marriage      .......  196 

3.°  Knowledge  or  Conviction  of  the  Nullity 

of  the  Marriage 198 

4.°  Fiction  or  Simulation 198 

5.°  Violence  and  Fear     .      .      .      .      .      .  203 


18  CONTENTS 

III.  Manifestation  of  the  Consent    ....  209 

IV.  Marriage  by  Proxy 2 1 1 

V.  Marriage  by   Interpreter 215 

VI.  Licitness     of     the     Foregoing     Marriages 

Through  Proxy  or  Interpreter     .      .      .  216 

VII.  Conditional   Marriage 217 

i.°  Nature  and  Species  of  Conditions  .      .  217 

2.°  Ancient  Legislation 218 

3.°  Present  Legislation 220 

VIII.  .Consent  in  Invalid  Marriage      ....  226 

CHAPTER  VI 

THE  FORM   OF  MARRIAGE 

A.  Former  Discipline 229 

B.  Present  Legislation 232 

i.°  General  Principle 232 

2.°  Conditions  for  the  Validity  ....  233 

3.°  Authorization  to  Assist  at  Marriages   .  238 
4.°  Conditions  for  the  Lawful  Assistance  at 

Marriage 239 

5.°  Exceptions:  In  Cases  of  Danger  of  Death 

or  of  Urgent  Necessity 245 

6.°  Those  Who  Are  Affected  by  the  Law  .  249 

7.°  Rites  to  be  Observed 253 

A.  In  Catholic  Marriages     .      .      .      .  253 

B.  In  Mixed  Marriages 254 

8.°  Registration 256 

CHAPTER  VII 

MARRIAGES    OF   CONSCIENCE 

I.  Nature 263 

II.  Former   Legislation 263 

III.  Present   Law 264 

1.  Lawfulness  of  Marriages  of  Conscience     .  264 

2.  Obligation  to  Keep  Them  Secret  .      .      .  265 

3.  Registration 267 


CONTENTS  19 

CHAPTER  VIII 

TIME  AND  PLACE  FOR  THE  CELEBRATION 
OF  MARRIAGE 

I.  Time 269 

II.  Place 271 


CHAPTER  IX 

EFFECTS   OF  MARRIAGES 

I.  Indissolubility  of  Marriage     .....  275 

II.  Relative  Rights  of  the  Spouses       ....  276 

III.  Duties  of  Parents 277 

IV.  Legitimacy  of  Children 278 

V.  Presumed   Paternity 279 

VI.  Legitimation  of  Children 280 

CHAPTER  X 

MUTUAL  SEPARATION  OF  MARRIED 
PEOPLE 

ARTICLE  I 

DISSOLUTION  OF  THE  MARRIAGE  BOND 

A.  Marriage  Ratified  and  Consummated   .      .      .  284 

B.  Marriage  Only  Ratified 284 

i.  Religious  Profession 285 

II.  Papal  Dispensation  .......  286 

C.  Legitimate  Marriage  or  Marriage  of  Infidels 

and  Pauline  Privilege 288 

I.  Existence  and  Object  of  the  Privilege  .      .  288 
II.  Interpellations:  Necessity,  Object,  Dispen- 
sation       292 

l.°  Necessity  of  the  Interpellations  .      .      .291 

2.*  Object  of  the  Interpellations     .      .      .  291 

3.°  Dispensation 292 

4.°  Form  of  the  Interpellations  ....  293 

5.°  Effects  of  the  Interpellations     .      .      .  295 

HI.  Special  Provisions 299 


20  CONTENTS 

IV.  Dissolution  of  the  Marriage  Contracted  in 

Infidelity 302 

v.  Presumption  in  Doubtful  Cases      .      .      .  302 

ARTICLE  II 

LIMITED  DIVORCE,  OR  SEPARATION  AS  TO  BED,  BOARD,  AND 
DWELLING-PLACE 

1.  General  Principle 303 

2.  Principal  Cause  of  Separation — Adultery  .      .  305 

3.  Taking  Back  the  Guilty  Party 306 

4.  Other  Causes  for  Separation 308 

5.  Education  of  Children 311 

CHAPTER  XI 

REVALUATION  OF  MARRIAGE 

ARTICLE  I 

SIMPLE  REVALIDATION 

General  Conditions 313 

Renewal  of  the  Consent 314 

Mode  of  Renewal .314 

Marriage  Null  for  Want  of  Consent  .      .      .  316 

Marriage  Null  for  Want  of  the  Required  Form  3 1 8 


ARTICLE  II 


REVALIDATION  IN  RADICE 

i°.  Its  Nature 319 

2,°  When  is  it  Possible?      .  321 

3.°  When  is  it  Impossible? 322 

4.°  By  Whom  is  it  Granted? 323 

CHAPTER  XII 
OF  SECOND   MARRIAGES 

INDEX 329 


MARRIAGE  LEGISLATION  IN  THE 
NEW  CODE  OF  CANON  LAW 

0 

PRELIMINARY  NOTIONS 

NATURE,  END,  PROPERTIES,  VARIOUS 

KINDS  OF  MARRIAGE;  AUTHORITY 

THAT  GOVERNS  IT;  CANONICAL 

VALUE  OF  BETROTHMENTS 

I.  NATURE  OF  CHRISTIAN  MARRIAGE 

1.  Marriage  is  a  contract  by  which  man  and  wo- 
man become  irrevocably  united  for  the  procreation 
and  education  of  children.     It  has  its  origin  in  the 
natural  law.     God  gave  it  in  the  beginning  a  sacred 
and  religious  character;  and  Christ  raised  it  to  the 
dignity  of  a  sacrament  of  the  New  Law. 

The  matrimonial  legislation  of  the  Church  presup- 
poses, as  its  foundation,  this  elevation  of  the  marriage 
contract  to  the  sacramental  dignity;  and  hence  it  is 
especially  declared  in  the  first  canon : 

Can.  1012.  §  1.  Christus  Dominus  ad  sacrament! 
dignitatem  evexit  ipsum  contractum  matrimonialem 
inter  baptizatos. 

§  2.  Quare  inter  baptizatos  nequit  matrimonialis 
contractus  validus  consistere,  quin  sit  eo  ipso  sacra- 
mentum. 

2.  §  1.  Our  Lord  raised  to  the  dignity  of  a 
sacrament  the  contract  of  marriage  between 
baptized  persons. 

§  2.  Hence  between  baptized  persons  there 
can  be  no  valid  contract  of  marriage  without 
there  being  a  sacrament. 

31 


22  PRELIMINARY  NOTIONS 

1.*  That  marriage  is  a  sacrament  has  always  been 
the  belief  and  teaching  of  the  Church.  (Trent, 
Sesa.  xxiv,  de  Mat.,  can.  1.)  That  the  marriage  con- 
tract itself  constitutes  the  sacrament  has  not  always 
been  so  clearly  understood. 

Without  speaking  of  such  writers  as  Launoy, 
Nuytz,  and  others,  for  whom  the  sacrament  of  mar- 
riage is  only  an  accessory  to  the  contract  and  consists 
in  the  nuptial  blessing  exclusively,  there  have  been 
theologians  and  canonists  who,  unable  to  find  all  the 
necessary  elements  of  a  sacrament  in  certain  marriage 
contracts  commonly  recognized  as  valid,  were  led  to 
admit  a  real  distinction  between  the  contract  and  the 
sacrament,  making  the  latter  consist  of  two  elements 
— the  contract  as  the  matter  and  the  nuptial  bless- 
ing as  the  form.  (Estius  in  iv  Sent.,  dist.  xxvi,  §  10, 
Melchior  Canus. )  Some  of  the  Fathers  of  the  Coun- 
cil of  Trent  favored  this  theory  as  reconciling  better 
the  substantial  immutability  of  the  sacraments  with 
the  power  of  establishing  matrimonial  impediments ; 
and  Benedict  XIV  (De  Syn.  Dioec.,  1.  viii,  c.  13)  still 
speaks  of  it  as  based  on  very  solid  arguments;  but 
after  the  clear  declarations  of  Pius  IX  (Syllabus 
prop.  66,  73)  and  of  Leo  XIII  (Arcanum,  Feb.  10, 
1880)  it  was  no  longer  tenable. 

3.  2.°  Nor  could  it  be  admitted,  with  another 
school  (Salmant,  Cursus  Theologias  Moralis,  Tract, 
xi,  cap.  iii;  Billuart;  Pontius),  that,  while  there  is 
always  a  contract  wherever  there  is  a  sacrament,  yet, 
there  can  be  a  contract  between  Christians  without 
there  being  a  sacrament.  _As  is  explicitly  declared 
in  this  canon,  the  contract  of  marriage  between  Chris- 


END  AND  PROPERTIES  OF  MARRIAGE  23 

tians  is  so  completely  identical  with  the  sacrament 
that  one  can  not  exist  without  the  other.  Hence  two 
Christians  who  would  have  no  intention  of  receiving 
the  sacrament  would  not  make  a  valid  contract.  It 
is  not  necessary  that  they  should  have  the  sacrament 
in  mind,  but  if  their  predominant  intention  is  to  ex- 
clude it,  there  is  no  contract;  because  for  Christiana 
the  contract  itself  must  be  a  sacrament  whenevei  it 
exists. 

4.  3.°  For  the  same  reason,  if  at  the  time  of  the 
marriage  the  parties  were  not  baptized  and  they  are 
baptized  afterwards  their  marriage  then  becomes  a 
contract  between  Christians  and,  therefore,  a  sacra- 
ment.    If  only  one  of  the  parties  is  baptized,  it  is 
doubtful  whether  even  for  him  the  marriage  is  a 
sacrament  as,  strictly  speaking,  we  have  not  here  a 
contract   between    Christians.       (Cf.    Palmieri,    De 
Matrimonio  Christiano,  cap.  11,  thesis  11;  Wernz, 
Jus  Decretalium,  vol.  iv,  n.  44;  Catholic  Encyclo., 
vol.  ix,  p.  713.) 

II.  END  AND  PROPERTIES  OF  MARRIAGE 

Can.  1013.  §  1.  Matrimonii  finis  primarius  est 
procreatio  atque  educatio  prolis;  secundarius  mu- 
tuum  adjutorium  et  remedium  concupiscentiae. 

§  2.  Essentiales  matrimonii  proprietates  sunt 
unitas  ac  indissolubilitas,  quae  in  matrimonio  chris- 
tiano  peculiarem  obtinent  firmitatem  ratione  sacra- 
menti. 

5.  §  1.  The  primary  end  of  marriage  is  the 
procreation  and  education  of  children ;  the  sec- 


24  PRELIMINARY  NOTIONS 

ondary  end,  mutual  support  and  the  relief  of 
concupiscence. 

§  2.  The  essential  properties  of  the  marriage 
contract  are  unity  and  indissolubility,  to  which 
the  sacrament  gives  a  special  firmness  in  Chris- 
tian marriage. 

1.°  The  procreation  and  education  of  children 
form  the  primary  aim  of  marriage,  which  was  insti- 
tuted by  the  Creator  for  the  propagation  of  the 
human  race.  But  mutual  support  and  the  appease- 
ment of  the  passions  are  ends  also,  although  second- 
ary and  subordinate.  As  will  be  said  later,  positive 
exclusion  or  even  mere  ignorance  of  the  primary  end 
would  render  the  marriage  null.  As  long,  however, 
as  the  primary  end  is  not  excluded,  marriage  con- 
tracted for  one  of  the  secondary  ends,  or  even  for  any 
reasonable  motive,  is  both  valid  and  licit. 

6.  2.°  (a)  Theologians  commonly  teach  that  poly- 
andry (union  of  one  woman  with  several  men)  is  con- 
trary to  the  primary  precepts  of  the  natural  law  and 
remained  always  forbidden.  Polygyny  (union  of 
one  man  with  several  women)  is  in  opposition  to  the 
secondary  precepts  of  the  natural  law:  forbidden  in 
the  original  institution  of  marriage,  it  was  permitted 
under  the  old  Dispensation  by  way  of  temporary  con- 
cession until  Christ  brought  marriage  back  to  the 
primitive  limits  of  monogamy.  Even  among  infidels, 
at  least  at  present,  a  man  can  have  only  one  legitimate 
wife. 

(6)  Likewise  the  bond  of  marriage  is  indissoluble 
by  the  law  of  nature.  Under  the  Mosaic  Dispensa- 


MARRIAGE  FAVORED  BY  LAW      25 

tion  the  law  was  relaxed  by  divine  authority.  It  was 
restored  by  Christ  to  its  original  severity.  Excep- 
tions may  be  made,  but  only  by  God,  directly  or 
through  His  representative  the  Church.  It  is  not 
within  the  limits  of  any  merely  human  power  to  dis- 
solve a  marriage  which  has  been  validly  contracted. 

(c)  In  Christian  marriage  the  contract,  raised  to 
the  dignity  of  a  sacrament,  becomes  a  sacred  thing, 
and  its  properties  are  more  inviolable.  It  is  more 
difficult  to  dissolve  it,  and  polygamy  is  more  repug- 
nant to  it  than  to  a  merely  natural  marriage. 

III.  MARRIAGE  FAVORED  BY  LAW 
Can.   1014.     Matrimonium   gaudet  favore  juris; 
quare  in  dubio  standum  est  pro  valore  matrimonii, 
donee  contrarium  probetur,  salvo  praescripto  can. 
1127. 

7.  Marriage  enjoys  the  favor  of  the  law; 
therefore,  in  case  of  doubt,  its  validity  ought  to 
be  maintained  until  the  contrary  be  proved,  tak- 
ing into  account,  however,  the  prescriptions  of 
can.  1127. 

It  is  a  general  principle  that  when  an  act  has 
been  performed  it  ought  to  be  considered  valid  until 
it  is  proved  to  be  null.  This  applies  in  a  special 
manner  to  marriage,  which  is  a  sacrament  and  indis- 
soluble by  divine  law.  To  pronounce  a  marriage  null 
without  sufficient  evidence  is  to  run  the  risk  of  "set- 
ting asunder  what  God  has  put  together." 

The  burden  of  proof  lies  on  the  one  who  attacks 
the  marriage.  The  only  exception  is  in  faror  of  a 
convert  to  the  Faith.  (Can.  1127.) 


26  PRELIMINARY  NOTIONS 

IV.  DIFFERENT  KINDS  OF  MARRIAGE 

Can.  1015.  §  1.  Matrimonium  baptizatorum 
validum  dicitur  ratum,  si  nondum  consummatione 
completum  est;  ratum  et  consummatum,  si  inter 
conjuges  locum  habuerit  conjugalis  actus,  ad  quern 
natura  sua  ordinatur  contractus  matrimonialis  et 
quo  conjuges  fiunt  una  caro. 

§  2.  Celebrato  matrimonio,  si  conjuges  simul 
cohabitaverint,  praesumitur  consummatio,  donee 
contrarium  probetur. 

§  3.  Matrimonium  inter  non  baptizatos  valide 
celebratum,  dicitur  legitimum. 

§  4.  Matrimonium  invalidum  dicitur  putativum, 
si  in  bona  fide  ab  una  saltern  parte  celebratum 
f ucrit,  donee  utraque  pars  de  ejusdem  nullitate  certa 
evadat. 

8.  §  1.  A  valid  marriage  between  Christians 
is  only  ratified  when  it  has  not  been  completed 
by  consummation;  it  is  ratified  and  consum- 
mated when  between  the  parties  has  taken  place 
the  physical  act  which  the  marriage  contract 
has  in  view,  and  by  which  the  parties  become 
one  flesh. 

§  2.  If  after  the  celebration  of  the  marriage 
the  parties  have  lived  together,  the  marriage  is 
supposed  in  law  to  be  consummated  until  the 
contrary  be  proved. 

§  3.  Marriage  validly  contracted  between  un- 
baptized  persons  is  called  legitimate. 

§  4.  An  invalid  marriage  which  has  been 
contracted  in  good  faith  by  at  least  one  of  the 
parties  is  called  putative  jmtil  both  parties  be- 
come certain  of  its  nullity. 


DIFFERENT  KINDS  OF  MARRIAGE  27 

9.  1."  These  divisions  and  these  terms,  long  in  use 
among  canonists,  are  here  sanctioned  by  the  legisla- 
tor and  their  meaning  is  officially  defined.     A  mar- 
riage is  only  ratified  when  it  has  not  been  consum- 
mated, but  the  term  ratified  is  usually  applied  to 
Christian  marriage  and  opposed  to  legitimate,  which 
designates  a  merely  natural  contract.     A  marriage 
between   two    unbaptized   persons   becomes    ratified 
when  both  parties  are  baptized.    If  it  was  never  con- 
summated, it  will  be  ratified  only.     If  it  was  con- 
summated before  Baptism  and  not  after,  it  will  be 
consummated  and  ratified;  if  consummated  after,  it 
will  be  ratified  and  consummated,  which  is  not  quite 
the  same  in  regard  to  indissolubility  or  dispensations. 

A  marriage  is  said  to  be  consummated  when  it  is 
followed  by  sexual  intercourse  sufficient  of  itself  for 
the  purpose  of  generation.  Onanistic  or  other  incom- 
plete relations  do  not  consummate  the  marriage,  but 
only  those  by  which  the  spouses  become  one  flesh, 
as  said  in  the  text;  and  they  become  one  flesh  per 
commixtionem  seminum  vel  sanguinum.  On  the 
other  hand,  any  sexual  intercourse  suitable  of  itself 
for  generation,  whether  voluntary  or  involuntary, 
conscious  or  unconscious,  suffices  for  consummation. 
(Gasparri,  n.  1064f. ;  A.  Eschbach,  Disputationes 
Physiologico-Theologicse,  Disputatio  secunda;  J.  An- 
tonelli,  Medicina  Pastoralis,  vol.  ii,  n.  42.) 

10.  2.°  A  marriage  contract  which  is  valid  with- 
out being  a  sacrament  is  called  simply  legitimate. 
When  contracted  between  a  baptized  and  an  unbap- 
tized person,  with  dispensation,  the  marriage  is  con- 
sidered as  ratified  in  regard  to  dissolubility  (Can. 


28  PRELIMINARY  NOTIONS 

1119),  although  its  sacramental  character  be  not  ad- 
mitted by  all;  but  a  marriage  between  two  unbap- 
tized  persons  does  not  acquire  all  the  indissolubility 
of  ratified  marriage  by  the  baptism  of  one  of  the 
parties,  since  it  can  be  dissolved  by  the  subsequent 
marriage  of  that  party. 

11.  3.°  A  marriage  although  null  enjoys  several 
legal  privileges  and  is  sufficient  for  the  legitimacy  of 
children,  when,  and  as  long  as,  it  is  believed  to  be 
valid  by  at  least  one  of  the  parties.     It  is  then  called 
putative.    If  it  has  been  contracted  with  all  necessary 
formalities,  but  is  null  because  of  some  secret  impedi- 
ment known  to  the  parties,  it  is  said,  by  canonists,  to 
have  an  appearance  of  marriage.      (Wernz,  v.  iv, 
n.  29.) 

V.  AUTHOEITY  THAT  KEGULATES 
MARRIAGE1 

Can.  1016.  Baptizatorum  matrimonium  regitur 
jure  non  solum  divino,  sed  etiam  canonico,  salva 
competentia  civilis  potestatis  circa  mere  civiles 
ejusdem  matrimonii  effectus. 

12.  The  marriage  of  baptized  persons  is  regu- 
lated not  only  by  divine  but  also  by  canonical 
law,  the  civil  power  remaining  competent  in 
regard  to  the  civil  effects  of  marriage. 

All  marriages,  without  exception,  are  regulated 
by  the  natural  law;  but  they  may  be  regulated  be- 
sides by  the  law  of  the  society,  civil  or  religious, 
to  which  the  parties  belong. 

JDe    Smet,   n.   215. 


REGULATING  AUTHORITY          29 

13.  1.°  Marriage  of  baptized  persons.     It  is  gov- 
erned by  the  divine  law,  the  canonical  law,  and,  in 
regard  to  certain  effects,  the  civil  law. 

(a)  The  divine  law.  All  that  is  required  by  the 
law  of  nature  for  a  contract  and  for  a  marriage  con- 
tract is  necessary  also  for  Christian  marriage.  To 
this  must  be  added  the  prescriptions  of  the  divine 
positive  law  from  which  the  Church  does  not  and 
can  not  dispense. 

14.  (&)   The    ecclesiastical    law.      The    Church 
claims  full,  independent  and  exclusive  power  over 
the  marriage  of  all  baptized  persons — Catholics,  here- 
tics,   schismatics — because    she    has    received    from 
Christ  supreme  authority  in  religious  matters,  and 
marriage  is  a  sacrament;  and  because  by  Baptism 
men  become  her  subjects,   whether  willing  or  not. 
That  power  is  exclusive,  "To  decree  and  ordain  about 
the  sacrament  is,  by  the  will  of  Christ,  so  much  a 
part  of  the  power  and  duty  of  the  Church  that  it  is 
plainly  absurd  to  maintain  that  even  the  smallest 
particle  of  such  power  has  been  transferred  to  the 
civil  ruler."     (Leo  XIII,  Ency.  Arcanum.)     It  in- 
cludes the  legislative,  judicial,  and  coercive  power; 
that  is,  the  power  of  establishing  impediments  both 
diriment  and  impedient,  of  deciding  all  matrimonial 
causes,  of  constraining  married  persons  to  comply 
with  their  obligations,  etc.  ...  It  has,  however,  to 
be  exercised  within  the  limits  of  the  natural  and  di- 
vine positive  law,  does  not  extend  to  merely  civil 
effects,     and    should    not    unnecessarily    interfere 
with  the  liberty  of  marriage.     To  marry  is  a  right 
which  every  man  has  received  from  nature.     It  has 


30  PRELIMINARY  NOTIONS 

to  be  respected ;  still,  it  is  not  absolutely  independent 
in  its  exercise — the  common  and  private  good  may 
demand  that  it  be  restricted  at  times  and  perhaps 
taken  away  altogether  in  some  extraordinary  cases. 
Thus  the  Church  might  forbid  a  person  infected  with 
a  serious  contagious  disease  ever  to  marry,  even  un- 
der pain  of  nullity.  In  reality,  such  a  person  has  no 
right  to  marry.  Perhaps  the  prohibition  to  marry  might 
be  pronounced  as  a  punishment  for  certain  crimes, 
but  it  should  be  only  for  very  grave  crimes,  and  even 
then  it  could  be  used  only  very  seldom;  at  present 
it  is  found  more  expedient  to  have  recourse  to  other 
penalties.  Possibly  also  if  the  number  of  the  vicious 
and  degenerate  grew  so  large  that  the  very  safety  of 
society  would  be  endangered  and  the  common  good 
would  demand  imperatively  that  measures  be  taken 
to  prevent  the  birth  of  too  large  a  proportion  of  ab- 
normal children,  the  Church  might  exclude  from  the 
privilege  of  marrying  certain  persons  who  are  clearly 
unfit  for  raising  a  family.  But  it  will  rarely,  if  ever, 
occur,  that  such  a  measure  be  necessary,  and  when- 
ever another  remedy  can  be  found,  it  ought  to  be 
preferred.  (De  Smet,  n.  219.) 

15.  (c)  Civil  power.  The  civil  power  has  no  au- 
thority over  the  bond  itself  or  what  is  essential  to 
it,  and  can  establish  no  real  impediment,  diriment  or 
impedient,  to  the  marriage  of  Christians.  It  has 
authority  over  the  civil  effects.  What  can  be  con- 
sidered merely  civil  effects  it  is  not  always  easy  to 
determine,  and  there  is  some  difference  of  opinion 
among  canonists  on  that  point.  Ordinarily  they  de- 
fine civil  effects  those  which  concern  the  temporal 


REGULATING  AUTHORITY          31 

order,  and  are  not  inseparable  from  the  marriage 
contract,  as  what  pertains  to  the  dowry,  the  right 
of  succession,  etc.  (Wernz,  n.  50;  Gasparri,  n.  278.) 
The  State  has  legislative,  judicial,  and  coercive  power 
over  these  (De  Smet,  n.  220)  ;  it  may  require  certain 
formalities,  like  registration,  as  a  condition  for  grant- 
ing legal  value  to  a  canonically  valid  marriage,  and 
punish  the  omission  of  those  requirements.  But  even 
the  purely  civil  effects  should  not  be  withheld  with- 
out legitimate  cause  from  a  valid  contract.  And 
those  which,  although  of  a  civil  or  temporal  order  in 
themselves,  are  inseparable  from  a  valid  contract — 
e.g.,  the  legitimacy  of  children  or  cohabitation — 
should  not  be  denied  by  the  civil  courts  to  marriages 
contracted  in  accordance  with  the  laws  of  the  Church. 
(Wernz,  n.  82.) 

16.  2.°  Marriage  of  unbapiized  persons.  Our  law 
does  not  mention  them  because  the  Church  does  not 
legislate  for  them.  She  may,  however,  have  to  pro- 
nounce on  their  validity,  as,  v.g.,  in  the  case  of  con- 
verts, or  in  the  case  of  infidels  seeking  to  marry 
Christians  after  a  previous  marriage.  If  that  mar- 
riage had  been  contracted  with  an  impediment  of  the 
natural  or  divine  positive  law,  it  is  without  hesitation 
declared  null.  But  the  Roman  Congregations  have 
also  repeatedly  pronounced  the  same  decision  and 
permitted  a  second  marriage,  when  there  was  no 
other  obstacle  to  the  validity  of  the  first  than  an  im- 
pediment of  the  civil  law.  (S.  C.  de  Prop.  Fide, 
June  26,  1820,  n.  744;  Wernz,  n.  80;  Gasparri, 
n.  281.)  From  this  and  from  intrinsic  arguments 
it  is  inferred  that  the  Church  recognizes  in  the  su- 


32  PRELIMINARY  NOTIONS 

preme  civil  authority  the  power  of  regulating  the 
marriages  of  unbaptized  citizens,  of  establishing  diri- 
ment and  prohibiting  impediments,  and  in  general  of 
exercising,  with  a  view  to  temporal  welfare,  the  same 
legislative,  judicial,  and  coercive  power  over  non- 
Christian  as  she  exercises  over  Christian  marriages. 
This  conclusion,  commonly  admitted  till  the  middle 
of  the  nineteenth  century,  encountered  then  some  op- 
ponents who  seemed  to  be  afraid  of  granting  too  much 
power  to  the  State.  In  the  absence  of  a  general  and 
final  decision  of  the  Holy  See,  it  can  not  be  said  to  be 
absolutely  certain ;  but  it  has  the  support  of  the  great 
majority  of  canonists  and  is  considered  certain 
enough  to  be  acted  upon  by  the  Roman  Congregations. 
(Gasparri,  n.  281f. ;  Wernz,  n.  75.) 

17.  To  be  valid,  civil  laws  regarding  marriage,  as 
other  laws,  must  have  a  reasonable  cause,  and  they 
should  be  in  conformity  with  the  divine  right.     The 
State,  at  least  as  much  as  the  Church,  must  abstain 
from  establishing  those  absolute  impediments  which 
take  away  from  a  person  the  innate  right  of  marrying 
that  he  has  from  nature.     This  seems  to  be  forgotten 
by  those  legislators  who,  under  the  pretext  of  promot- 
ing the  propagation  of  offspring  sound  in  mind  and 
in  body,  would  demand  for  marriage  a  certain  physi- 
cal perfection,  and  exclude  from  it  all  those  who  are 
liable  "to  bring  into  the  world  children  suffering 
from  some  hereditary  taint." 

18.  It  should  be  observed  that  a  marriage  between 
infidels  is  not  null  by  the  mere  fact  that  it  was  con- 
tracted in  violation  of  a  civil  law.     The  prohibition 
may  have  no  reference  to  the  bond  itself,  but  only  to 


PROMISES  OF  MARRIAGE  33 

the  civil  effects ;  or,  if  it  constitutes  an  impediment, 
we  have  to  examine  whether  it  is  a  diriment  or  a  pro- 
hibiting one;  the  distinction  is  not  always  clearly 
made  by  civil  legislators.  Then  we  have  to  see 
whether  the  impediment  is  a  reasonable  one  and  bind- 
ing in  conscience.  A  comparison  with  the  canonical 
impediments  will  help  to  decide  that  question.  (Jean 
Chabagno,  Le  mariage  des  infideles  dans  ses  rapports 
avec  la  loi  civile  en  general  et  la  loi  Japonaise  en 
particulier,  Yokohama — Canoniste  Contemporain, 
Sept.,  1914.)  As  in  any  case  it  remains  somewhat 
doubtful  that  civil  impediments  are  binding  in  con- 
science, cases  of  nullity,  on  that  ground,  should  be 
treated  with  caution,  and  when  more  difficult  should 
be  referred  to  the  Holy  See.  (De  Smet,  n.  224 ;  De 
Becker,  De  Matrimonio,  p.  43.) 

VI.  PROMISES  OF  MARRIAGE,  BE- 
TROTHALS 

Can.  1017.  §  1.  Matrimonii  promissio  sive  uni- 
lateralis,  sive  bilateralis  seu  sponsalitia,  irrita  est 
pro  utroque  foro,  nisi  facta  fuerit  per  scripturam 
subsignatam  a  partibus  et  vel  a  parocho  aut  loci 
Ordinario,  vel  a  duobus  saltern  testibus. 

§  2.  Si  utraque  vel  alterutra  pars  scribere  ne- 
sciat  vel  nequeat,  ad  validitatem  id  in  ipsa  scriptura 
adnotetur  et  alius  testis  addatur  qui  cum  parocho 
aut  loci  Ordinario  vel  duobus  testibus,  de  quibus  in 
§  1,  scripturam  subsignet. 

§  3.  At  ex  matrimonii  promissione,  licet  valida 
sit  nee  ulla  justa  causa  ab  eadem  implenda  excuset, 
non  datur  actio  ad  petendam  matrimonii  celebra- 
tionem;  datur  tamen  ad  reparationem  damnorum, 
si  qua  debeatur. 


34  PRELIMINARY  NOTIONS 

19.  §  1.  A  promise  of  marriage,  whether  uni- 
lateral or  bilateral,  that  is,  sponsalitial,  is  null 
in  both  forums  unless  it  be  made  in  writing, 
signed  by  both  parties,  and  by  either  the  parish 
priest  or  the  Ordinary  of  the  place,  or  at  least 
by  two  witnesses. 

§  2.  If  either  or  both  parties  be  unable  to 
write,  mention  of  that  fact  must  be  made  in  the 
document,  for  the  validity  of  the  act,  and  an- 
other witness  must  be  added  to  sign  the  docu- 
ment, together  with  the  parish  priest  or  Ordi- 
nary of  the  place  or  the  two  witnesses  spoken 
of  in  §  1. 

§  3.  But  a  promise  of  marriage,  although  it 
be  valid  and  there  be  no  just  cause  to  excuse 
from  fulfilment,  does  not  furnish  ground  for  an 
action  to  demand  the  celebration  of  the  mar- 
riage ;  it  will,  however,  permit  to  bring  suit  for 
damages  if  any  be  due. 

20.  A  marriage  may  be  promised  by  one  party  and 
the  promise  merely  accepted  by  the  other;  we  have 
then  a  unilateral  contract,  binding,  indeed,  if  made 
seriously,  in  justice,  or  in  fidelity  according  to  the 
intention  of  the  promisor,  but  binding  only  on  one 
side,  like  all  gratuitous  contracts.     Or  the  promise 
may  be  followed  by  a  counter-promise,  and  we  have 
the  bilateral  promise  of  marriage,  which  is  called  be- 
trothal.    While  not  necessary  in  itself,  it  may  be  ex- 
pedient that  betrothal  should  precede  marriage,  as  a 
barrier  against  hasty  unions.     It  was  in  use  among 
the  Jews,  the  Romans,  the  Germans;  the  Christian 


PROMISES  OF  MARRIAGE  35 

Church  always  permitted  it,  often  encouraged  it,  in 
some  places  even  made  it  obligatory.  (Wernz,  n.  88, 
91 ;  Instructions  of  the  Vicariate  of  Rome,  1 ;  Canon- 
iste,  Sept.,  1911,  p.  595.) 

Betrothal  is  a  natural  contract  and  it  has  been  sanc- 
tioned by  canon  law.  We  may  consider  it  here  under 
that  twofold  aspect.  (Tanquerey,  n.  944.) 

I.  BETROTHAL  AS  A  NATURAL,  CONTRACT 

21.  1.°  Its  nature  and  conditions:  (a)  Betrothal 
is  a  reciprocal  promise  of  future  marriage  made  by  a 
determinate  man  and  a  determinate  woman,  who  are 
not  disqualified  for  it. 

(&)  The  contract  is  constituted  by  the  consent, 
which  must  be  real,  free,  simultaneous,  and  legiti- 
mate; the  contracting  parties  must  have  the  use  of 
reason,  which  is  not  presumed  before  the  age  of  seven 
years,  and  the  ability  to  contract  marriage  at  some 
future  time. 

(c)  ISTo  particular  formalities  are  required  by  the 
natural  law,  but  only  that  the  consent  be  clearly  mani- 
fested. 

22.  2.°  Its  effects:  (a)  A  grave  obligation  of  jus- 
tice to  marry  the  betrothed  person  at  the  proper  time 
and  consequently  a  prohibition  to  marry  any  other  as 
long  as  the  valid  betrothal  exists;  (&)   an  obligation 
for  the  parties  to  keep  the  sponsalitial  faith  and  not 
to  render  themselves  unfit  for  marriage. 

Those  who  without  legitimate  excuse  do  not  com- 
ply with  their  promise  are  bound  to  indemnify  the 
other  party  for  the  loss  inflicted;  and  even  should 
there  be  no  loss  suffered,  a  compensation  may  be  ex- 


36  PRELIMINARY  NOTIONS 

acted  from  them  as  penalty  for  broken  faith  and  a 
satisfaction  for  the  wrong  done. 

23.  3.°  Dissolution:  Betrothal  is  dissolved  (a)  by 
the  mutual  consent  of  the  parties,  explicit  or  implicit ; 
(6)  by  a  supervening  impediment  or  obstacle  which 
renders  the  marriage  impossible  or  unlawful;  (c)  by 
a  breach  of  the  sponsal  fidelity ;  (d)  by  a  subsequent 
notable  change  or  the  discovering  of  a  grave  defect 
which,  if  known  before,  would  have  prevented  the 
contract  being  entered  into ;  (e)  by  delay  in  comply- 
ing with  the  promise,  beyond  the  appointed  or  reason- 
able time;  (/)  by  dispensation  granted  by  the  head 
of  the  social  body,  the  Pope  in  the  case  of  the  faithful, 
the  civil  ruler  in  the  case  of  the  non-Christians.     (De 
Smet,  n.  31.) 

II.    BETEOTHALS   AND   CANON   LAW 

A.   The  Ancient  Law  of  the  Church 

24.  1.°  As  to  the  conditions  that  are  necessary  and 
sufficient  for  the  validity  of  the  contract,  the  Church 
accepted  the  prescriptions  of  the  natural  law,  complet- 
ing them  only  on  a  few  points  of  minor  importance. 

2.°  The  effects  produced  by  the  natural  contract  of 
betrothal  were  all  sanctioned  by  the  ecclesiastical  law, 
which  added  the  diriment  impediment  of  public  de- 
cency, arising  between  each  party  and  the  blood  rela- 
tions of  the  other  in  the  first  degree,  provided  the 
betrothal  be  valid  and  absolute. 

By  decretal  law  (Alexander  III,  Episcopo  Pict., 
cap.  10,  de  Sponsalibus)  die  Bishop  had  the  right  to 
compel  the  betrothed,  even  by  means  of  censures,  to 


37 


keep  their  promise;  and  the  unjustly  forsaken  party 
could  sue  the  other  for  damages  before  the  ecclesias- 
tical court. 

25.  3.°  Formalities:  (a)  Before  1908  no  special 
formalities  were  required  by  the  general  law  of  the 
Church  for  the  validity  of  betrothals.  At  the  Coun- 
cil of  Trent  it  was  proposed  to  exact  the  presence  of 
three  witnesses.  Bishops  asked  at  various  times  that 
some  special  form  be  prescribed,  but  the  discipline 
remained  unchanged.  Regulations  departing  from 
it  in  diocesan  statutes  were  refused  approval.  If  in 
1880  the  Holy  See  declared  that  a  written  document 
and  the  presence  of  a  notary  were  necessary  in  Spain 
for  the  validity  of  betrothals,  it  was  on  account  of  the 
custom  that  had  prevailed  in  that  country  since  the 
beginning  of  the  century.  (Gasparri,  n.  26.) 

(&)  It  was  found,  however,  that  clandestine  be- 
trothals were  not  without  serious  inconveniences,  and 
Bishops  again  asked  the  Holy  See  for  a  remedy. 
Consequently,  Pius  X  in  the  decree  Ne  temere,  pub- 
lished August  2,  1907,  ordained  that  "only  those  be- 
trothals are  considered  valid  and  produce  canonical 
effects  which  have  been  contracted  in  writing,  signed 
by  both  parties  and  either  the  parish  priest  or  the  Or- 
dinary of  the  place  or  at  least  by  two  witnesses.  In 
case  one  or  both  parties  be  unable  to  write,  this  fact  is 
to  be  noted  in  the  document  and  another  witness  is  to 
be  added,  who  will  sign  the  writings  as  above,  with 
the  parish  priest  or  the  Ordinary  of  the  place  or  the 
two  witnesses." 

From  the  moment  of  the  enforcement  of  this  law, 
that  is,  Easter  Sunday,  April  19,  1908,  no  contract 


38  PRELIMINARY  NOTIONS 

of  betrothal  is  canonically  valid  unless  the  above  for- 
malities are  observed ;  it  is  not  even  binding  in  con- 
science, according  to  the  more  common  opinion. 
B.  Promises  of  Marriage  and  the  Present  Legislation 
26.  The  provisions  of  the  Ne  temere  are  main- 
tained substantially  in  the  new  Code,  but  completed 
and  modified  in  a  few  points. 

1.  The  law  will  apply  now  to  all  promises  of  mar- 
riage, not  simply  to  mutual  promises  or  contracts  of 
betrothal;  and  it  is  explicitly  enacted  that  the  for- 
malities prescribed  here  are  required  for  the  value  of 
those  promises  in  the  internal  as  well  as  in  the  ex- 
ternal forum. 

2.  The  formalities  prescribed,  besides  what  is  re- 
quired by  natural  law,  are  the  following : 

(a)  The  contract  must  be  made  in  writing,  signed 
by  the  parties  and,  besides,  by  either  the  pastor  or  the 
Ordinary  of  the  place,  or  by  at  least  two  witnesses, 
if  neither  the  pastor  nor  the  Ordinary  sign.  It  is  the 
pastor  or  the  Ordinary  of  the  place  where  the  con- 
tract is  made  who  is  to  sign  it,  not  the  pastor  of  the 
parties. 

Only  the  pastor  is  mentioned,  with  the  Ordinary, 
as  having  that  quality  of  official  witness,  not  the 
assistants;  nor  can  he  delegate  his  authority,  as  is 
implied  in  the  text  of  the  law  and  was  officially  de- 
clared by  the  S.  Cong,  of  the  Council,  March  28, 
1908. 

No  special  qualifications  are  demanded  in  the  wit- 
nesses; children,  women,  non-Catholics,  etc.,  can, 
strictly  speaking,  act  as  such,  as  long  as  they  have 
the  use  of  reason  and  are  able  to  write. 


PROMISES  OF  MARRIAGE  39 

Nothing  is  determined  as  to  the  precise  form  or 
wording  of  the  contract,  but  a  decree  of  the  Congre- 
gation demanded  that  it  be  dated.  (S.  C.  C.,  July 
27,  1908.) 

(6)  If  one  or  both  of  the  parties  be  unable  to  write, 
either  because  they  never  learned  or  for  some  other 
reason,  the  fact  has  to  be  noted  in  the  document,  to 
make  it  even  valid;  and  another  witness  has  to  be 
added  who  will  sign  with  the  pastor  or  the  Ordinary 
or  the  other  two  witnesses  according  to  the  case. 

It  does  not  make  any  difference  whether  it  is  one  or 
both  of  the  parties  that  can  not  write ;  one  additional 
witness  will  suffice  in  either  case.  But  the  signature 
of  an  additional  witness  can  take  the  place  of  that  of 
the  parties  only  when  the  latter  can  not  write.  If 
they  failed  to  sign  the  document  when  they  are  really 
able  to  do  so,  the  contract  would  be  null. 

(c)  Conditional  engagements  and  engagements  by 
proxy  were  considered  as  valid  and  lawful  under  the 
decree  Ne  temere  on  the  same  conditions  as  before. 
Nothing  in  the  present  law  implies  a  change  in  the 
discipline  on  that  point.  The  decree  of  the  Congre- 
gation (July  27,  1907)  demanding  that  both  parties 
sign  the  contract  at  the  same  time  (unico  contextu), 
requires  the  presence  of  both,  and  consequently  ex- 
cludes engagements  by  letter. 

27.  3.  Effects.  Promises  of  marriage  made  ac- 
cording to  the  prescribed  form  will  be  binding  in  con- 
science, but  they  do  not  give  rise  any  more  to  the 
diriment  impediment  of  public  decency,  nor  to  any 
canonical  prohibiting  impediment  properly  so  called. 


40  PRELIMINARY  NOTIONS 

The  obligation  itself  of  contracting  marriage  can  not 
be  juridically  enforced. 

Even  under  the  former  legislation  it  occurred  very 
seldom  that  ecclesiastical  authorities  compelled  be- 
trothed parties  to  marry.  Pope  Lucius  III,  asked 
by  a  Bishop  by  what  censures  a  certain  woman  could 
be  compelled  to  keep  a  promise  of  marriage  she  had 
made  under  oath,  answered  that  as  marriages  ought 
to  be  free,  the  woman  should  be  warned  and  per- 
suaded rather  than  forced,  because  forced  marriages 
have  ordinarily  unhappy  results  (17,  x,  iv,  1).  Can- 
onists concluded  from  those  words  that  coercion 
should  be  used,  in  this  matter,  only  by  way  of  excep- 
tion. Even  those  exceptions  will  not  be  allowed 
henceforth. 

The  ecclesiastical  courts  will  not,  however,  ignore 
promises  of  marriage  altogether;  they  may  afford 
ground  for  an  action  for  damages.  Neither  is  this 
inconsistent.  Similar  provisions  are  found  in  mod- 
ern civil  legislations.  According  to  English  and 
American  law,  "engagements  can  not  be  enforced  in 
civil  courts,  but  would  furnish  good  ground  for  a 
breach-of-promise  suit."  Even  the  Code  Napoleon, 
which  denies  all  binding  power  to  a  promise  of  mar- 
riage, permits  "a  claim  for  damages,  not  on  account 
of  breach  of  promise,  which  law  does  not  forbid,  but 
in  consequence  of  misdemeanor  or  quasi-misde- 
meanor,  that  is  to  say,  deceit  or  other  like 
wrong." 

4.  Dissolution.  Promises  of  marriage,  whether 
unilateral  or  bilateral,  even  when  made  with  all  the 
formalities  described  above,  remain  dissoluble  by 


INSTRUCTIONS  ON  MARRIAGE      41 

mutual  consent,  substantial  change  and  other  causes 
as  heretofore. 

VII.  INSTRUCTIONS  ON  MAKRIAGE  AND 
MARRIAGE  IMPEDIMENTS 

Can.  1018.  Parochus  ne  omit  tat  populum  pru- 
denter  erudire  de  matrimonii  sacramento  ejusque 
impedimentis. 

28.  The  pastor  shall  not  fail,  prudently,  to  in- 
struct the  people  on  the  sacrament  of  marriage 
and  impediments  to  it. 

The  insistence  of  the  law  on  this  duty  of  instruct- 
ing the  people  shows  the  importance  the  legisla- 
tor attaches  to  it.  Catholics  ought  to  know  the  doc- 
trine of  the  Church  on  marriage,  its  nature,  its 
sacredness,  its  properties.  They  must  have  also  at 
least  an  elementary  idea  of  marriage  impediments  in 
order  to  avoid  invalid  contracts,  which  are  often  due 
to  ignorance  and,  although  not  formally  sinful,  are 
not  sanctified  hy  the  sacramental  grace. 

Prudence  is  recommended  so  that  anything  which 
might  shock  the  hearers  be  carefully  avoided  and  in- 
formation be  not  given  which  would  be  of  little  benefit 
and  might  be  simply  used  to  evade  the  law. 


CHAPTER  I 

PRELIMINARIES  TO  THE  CELEBRATION 

OF  MARRIAGE,  AND  PARTICULARLY 

THE  MARRIAGE  BANNS 

GENERAL  PRINCIPLE 

Can.  1019.  §  1.  Antequam  matrimonium  cele- 
bretur,  constare  debet  nihil  ejus  validae  ac  licitae 
celebration!  obsistere. 

§  2.  In  periculo  mortis,  si  aliae  probationes  ha- 
beri  nequeant,  sufficit,  nisi  contraria  adsint  indicia, 
affirmatio  jurata  contrahentium,  se  baptizatos  fuisse 
et  nullo  detineri  impedimento. 

29.  §  1.  Before  a  marriage  is  celebrated  it 
must  be  ascertained  that  there  is  no  obstacle  to 
its  valid  and  licit  celebration. 

§  2.  In  case  of  danger  of  death,  if  no  other 
proofs  can  be  obtained,  it  will  suffice,  unless 
there  be  indications  to  the  contrary,  to  have  a 
sworn  statement  from  the  contracting  parties, 
that  they  are  baptized  and  free  to  contract  mar- 
riage.1 

30.  1.°  Respect  for  the  sacrament  as  well  as  re- 
gard for  the  interests  of  the  family  and  of  society 
demand  that  great  care  be  taken  to  secure  the  licit- 
ness  and  validity  of  marriages. 

During  the  first  centuries  all  proposed  marriages 
had  to  be  referred  to  the  Bishop,  who  would  see  that 
there  were  no  obstacles  to  their  celebration.  (St. 

1Gasparri,  c.  ii;  Wernz,  n.  129f. 
43 


44     PRELIMINARIES  TO  MARRIAGE 

Ignatius,  ad  Poly.,  5.)  When  the  faithful  became 
more  numerous  and  parishes  were  established,  the 
duty  to  watch  over  marriages  devolved  upon  the  par- 
ish clergy.  They  were  first  directed  to  make  a  care- 
ful investigation  in  each  case;  and,  later  on,  when 
this  proved  insufficient,  they  were  commanded  to  pub- 
lish in  church  marriages  about  to  be  celebrated. 

Both  the  investigation  and  the  proclamation  of 
banns  remain  obligatory  to  this  day  as  means  of  pre- 
venting invalid  or  unlawful  marriages. 

31.  2.°  The  law  mentions  one  exception :  When  a 
party  is  in  danger  of  death  and  no  other  evidence  can 
be  obtained,  his  testimony  may  be  accepted  as  suffi- 
cient proof  of  his  baptism  and  of  his  freedom  to 
marry.  The  testimony  has  to  be  given  under  oath 
and  be  such  that  it  inspires  full  confidence.  If  there 
be  any  serious  reason  to  doubt  its  reliability,  the  mar- 
riage can  not  be  permitted  without  further  investiga- 
tion. 

Other  cases  will,  no  doubt,  occur,  when  it  would 
be  very  difficult  to  comply  with  all  the  requirements 
of  the  law  in  this  matter.  The  fact  that  only  one  ex- 
ception is  mentioned  shows,  at  least,  that,  in  the  mind 
of  the  legislator,  those  prescriptions  are  not  to  be 
dispensed  with  except  for  really  grave  reasons.  The 
way  to  carry  them  out  will  be  specified  more  in  detail 
in  the  following  canons. 

I.  ESTVESTIGATIOtf  BY  THE  PASTOR 

1.°   FBEEDOM  AND  INSTRUCTION  OF  THE  PASTIES 

Can.  1020.  §  1.  Parochus  cui  jus  est  assistendi 
matrimonio,  opportune  antea  tempore,  diligenter 


INVESTIGATION  BY  THE  PASTOR    45 

investiget  num  matrimonio  contrahendo  aliquid 
obstet. 

§  2.  Turn  sponsum  turn  sponsam  etiam  seorsum 
et  caute  interroget  num  aliquo  detineantur  impedi- 
mento,  an  consensum  libere,  praesertim  mulier, 
praestent,  et  an  in  doctrina  Christiana  sufficienter 
instruct!  sint,  nisi  ob  personarum  qualitatem  haec 
ultima  interrogatio  inutilis  appareat. 

§  3.  Ordinarii  loci  est  peculiares  normas  pro 
hujusmodi  parochi  investigatione  dare. 

32.  §  1.  The  pastor  whose  right  it  is  to  assist 
at  a  marriage  ought  to  inquire  carefully  before- 
hand, and  in  good  time,  whether  there  are  any 
obstacles  to  the  marriage. 

§  2.  He  shall  interrogate  both  the  bride- 
groom and  the  bride,  separately  and  prudently, 
inquiring  whether  they,  particularly  the  bride, 
give  their  consent  freely,  whether  they  are  suffi- 
ciently instructed  in  Christian  Doctrine,  unless 
this  last  question  be  deemed  useless  considering 
the  quality  of  the  persons. 

$  3.  It  is  left  for  the  Ordinary  of  the  place  to 
lay  down  specific  rules  for  this  investigation. 

33.  1.  It  is  the  pastor  who  is  responsible  for  the 
investigation,  even  when  he  is  not  to  assist  at  the 
marriage  personally.     If  the  parties  belong  to  differ- 
ent parishes,  either  pastor  is  competent ;  but  generally 
it  is  better  that  the  investigation  be  made  by  the  one 
in  whose  parish  the  marriage  is  to  be  celebrated,  with 
the  co-operation  of  the  other  as  far  as  is  necessary. 
The  obligation  is  in  itself  a  grave  one,  and  would 
seem  to  exist  even  when  it  is  morally  certain  that 


46     PRELIMINARIES  TO  MARRIAGE 

no  impediment  will  be  discovered.  This  principle 
holds  good  for  the  publication  of  the  banns  and 
should  apply  also  to  the  investigation.  (Gasparri,  n. 
142.) 

34.  2.  The  pastor  has  to  interrogate  the  parties. 
For  a  long  time  this  was  the  ordinary  means  of  ascer- 
taining their  freedom.  When  it  was  found  insufficient, 
the  Fourth  Lateran  Council  (Can.  51,  Cap.  3,  De 
Clandestinitate  Desponsa.)   ordered  the  publication 
of  the  banns  of  marriage,  declaring  at  the  same  time 
that  the  pastors  were  not  dispensed  thereby  from  in- 
terrogating  prospective   husbands    and   wives;    and 
likewise  when  Clement  X  added  another  formality, 
the  examination  of  witnesses,  the  examination  of  the 
parties  remained  obligatory.     Benedict  XIV  strongly 
insists  on  its  importance  and  it  is  maintained  in  the 
new  Code.     Its  object  is  threefold:  The  possible  ex- 
istence of  impediments,  the  willingness  of  the  parties, 
particularly  the  woman,  to  marry,  and  their  religious 
instructions. 

35.  (a)  Regarding  impediments,  merely  general 
questions  would  frequently  not  suffice,  as  the  parties 
may,  in  good  faith,  consider  themselves  free  when 
they  are  not.     What  questions  should  be  asked  de- 
pends on  the  circumstances ;  they  should  refer  to  such 
impediments  as  are  likely  to  be  found  in  the  case. 
The  possible  existence  of  a  previous  marriage  de- 
serves special  attention.     Ordinarily  the  pastor  ought 
not  to  question  the  parties  as  to  impediments  involv- 
ing infamy  and  supposing  sin.     This  is  rather  the 
confessor's  province,   unless  the  crime  has  become 
known  in  the  external  forum,  or  at  least  is  strongly 


INVESTIGATION  BY  THE  PASTOR  47 

suspected.  The  parties  should  be  warned,  when  they 
go  to  confession,  to  let  their  confessor  know  that  they 
are  about  to  be  married  in  order  that  he,  too,  may  ask 
the  proper  questions  and  give  the  necessary  directions. 

36.  (&)  Willingness  to  marry.     The  Church  has 
always  insisted  on  the  freedom  of  the  marriage  con- 
tract.    In  her  legislation  she  has  defended  the  liberty 
of  subjects  against  the  pretensions  of  princes,  that 
of  children  against  abuses  of  parental  authority,  and 
that  of  all  the  faithful  in  general  against  undue  in- 
fluences.    Through  her  representatives,  the  pastors, 
she  wishes  to  extend  her  protection  to  every  individ- 
ual contract,  and  she  refuses  her  sanction  to  any  that 
is  not  entered  into  knowingly  and  willingly,  by  both 
parties.     Free  consent  constitutes  the  contract;  it  is 
the  first  condition,  then,  for  the  validity  of  the  sacra- 
ment, the  first  one  to  be  ascertained.     Even  at  the 
present  day  such  freedom  is  sometimes  wanting  and 
many  a  marriage  is  impugned  on  that  ground.     It  is 
not  without  reason,  then,  that  the  law  commands  us 
to  interrogate  the  parties  on  that  point,  particularly 
the  bride,  who  is  more  liable  to  be  unduly  influenced. 
The  questions  ought  to  be  asked  privately  and  in- 
dividually; special  care  should  be  taken  when  there 
are  reasons  to  believe  that  pressure  has  been  exer- 
cised ;  and  there  should  be  no  hesitation  in  supporting 
children  against  their  parents  themselves  if  the  case 
demands  it. 

37.  (c)  Religious  instruction.     The  duty  of  pas- 
tors to  see  that  persons  about  to  be  married  are  suffi- 
ciently instructed  in  the  rudiments  of  the  Christian 
Faith  has  been  frequently  affirmed  by  Popes  (v.g., 


48     PRELIMINARIES  TO  MARRIAGE 

Innocent  III,  Clement  XI,  Benedict  XIV),  and 
many  rituals  contain  directions  on  that  subject.  The 
present  law  renews  those  prescriptions.  Persons 
about  to  found  a  Christian  family  ought  to  know  at 
least  the  principal  truths  of  that  Faith  in  which  they 
are  to  raise  their  children.  If  they  do  not,  and 
neglect  to  be  instructed,  when  they  can,  Benedict 
XIV  declares  that  they  ought  to  be  considered  and 
treated  as  publicly  unworthy.1  He  admits,  at  the 
same  time,  that  a  rudimentary  knowledge  suffices 
when  nothing  more  can  be  obtained,  and  that  those 
who  are  so  dull  of  understanding  that  they  can  hardly 
learn  anything  by  heart  and  retain  it,  are  "not  to  be 
kept  indefinitely  from  marriage,  which  was  instituted 
for  the  requirements  of  nature,  and  which  conse- 
quently must  not  be  forbidden  any  one  except  for  his 
own  fault."  (De  Syn.  Diceces.,  1.  viii,  c.  14;  III 
Plen.  C.  Bait.,  n.  125.) 

When  the  pastor  knows  already  that  the  party  is 
sufficiently  well  instructed,  there  is  no  need  of  exam- 
ination. Warning  is  given,  however,  not  to  presume 
that  instruction  too  readily,  as  religious  ignorance  is 
very  common  even  among  otherwise  well  enough  edu- 
cated people;  and  persons  who  are  fairly  well  in- 
structed on  other  points  may  have  incomplete,  vague, 
or  wrong  views  on  marriage,  married  life,  the  rights 
and  duties  of  married  people.  (De  Smet,  n.  331, 
335.) 

1NoxE:  The  present  law  does  not  demand  that  they  be 
treated  as  public  sinners.— Commission  of  Interpretation,  Tune 
2-3,  1918.  A.  A.  S.,  August,  1918,  p.  345. 


INVESTIGATION  BY  THE  PASTOR  49 

38.  3.  The  common  law  does  not  enter  into  any 
details  concerning  the  method  to  be  followed  in  the 
investigation ;  it  is  left  for  the  Bishops  to  do  so.  They 
will  be  guided  in  this  by  the  existing  instructions  of 
the  Holy  See.     The  prescriptions  of  Clement  X  are 
no  more  obligatory  in  themselves,  but  the  pains  taken 
to  adapt  the  present  law  to  actual  conditions  shows 
that  in  the  intention  of  the  legislator  it  should  hence- 
forth be  observed  literally.     There  is  no  mention  of 
any  power  of  dispensing  granted  to  Bishops. 

39.  4.  The  ancient  law  had,  besides,  what  was 
called  the  examination  of  witnesses.     It  was  pre- 
scribed by  several  decrees  of  the  Holy  Office,  particu- 
larly that  of  August  20,  1670,  approved  by  Clement 
X,  in  •vrkich  the  obligation  of  the  examination  is  in- 
sisted on  and  the  formalities  to  be  followed  are  ex- 
plained in  detail.     The  examination  was  to  be  made 
in  presence  of  the  Bishop,  or  the  vicar-general,  or 
some  prominent  ecclesiastic  specially  delegated  for 
it.     At  least  two  witnesses  had  to  be  interrogated 
according  to  the  formula  given  in  the  decree  of  1670 
and  an  instruction  of  1890;  they  were  to  testify 
under  oath  to  the  free  state  of  each  of  the  intending 
parties.     To  have  recourse  to  the  suppletory  oath  in 
case  the  evidence  was  not  sufficient  required  special 
faculties  from  the  Holy  See.     When  the  examination 
was  made  in  presence  of  a  delegate,  the  report  of  the 
proceedings  was  to  be  sent  to  the  Bishop,  who  de- 
cided in  all  cases  whether  the  publication  of  banns 
would  be  permitted. 

In  practice  that  discipline  was  observed  only  in  the 
Pontifical  States ;  in  other  places  either  it  was  never 


50     PRELIMINARIES  TO  MARRIAGE 

received  or  soon  fell  into  disuse.  (Bishop  Kenrick, 
n.  193,  declares  that  in  the  United  States  it  is  often 
impossible  to  have  any  other  proof  of  the  freedom  to 
marry  than  the  sworn  testimony  of  the  parties  them- 
selves; Gasparri,  139;  Wernz,  n.  133;  De  Becker, 
De  Sponsalibus  et  Matrimonio,  sectio  iv,  cap.  viii, 
p.  290.)  That  the  Holy  See  desired  the  observance 
of  that  law,  whenever  possible,  is  proved  by  repeated 
declarations ;  at  the  same  time,  the  numerous  dispen- 
sations granted  in  recent  years  show  that  the  difficulty 
to  carry  out  all  its  prescriptions,  at  the  present  day, 
was  fully  realized. 

In  the  new  Code,  the  examination  of  witnesses  is 
not  mentioned. 

2.°    BAPTISM  AND  CONFIRMATION 

Can.  1021.  §  1.  Nisi  baptismus  collatus  fuerit 
in  ipso  suo  territorio,  parochus  exigat  baptism!  tes- 
timonium  ab  utraque  parte,  vel  a  parte  tantum 
catholica,  si  agatur  de  matrimonio  contrahendo  cum 
dispensatione  ab  impediment©  disparitatis  cultus. 

§  2.  Catholici  qui  sacramentum  confirmationis 
nondum  receperunt,  illud,  antequam  ad  matri- 
monium  admittantur,  recipiant,  si  id  possint  sine 
gravi  incommode. 

40.  §  1.  Unless  the  parties  have  been  baptized 
in  his  own  territory,  the  pastor  shall  exact  a  cer- 
tificate of  baptism  from  both  of  them,  or  from 
the  Catholic  party  alone  if  the  marriage  is  to  be 
contracted  with  a  dispensation  from  the  im- 
pediment of  disparity  of  cult. 


THE  BANNS  51 

§  2.  Catholics  who  have  not  as  yet  received 
the  sacrament  of  Confirmation,  shall  receive  it 
before  being  admitted  to  marriage  if  they  can 
do  so  without  grave  inconvenience. 

41.  1.  An  extract  from  the  baptismal  register  is 
the  official  proof  of  baptism,  and  should  be  exacted 
whenever  possible.     (Cong.  Sac.,  March  6,  1911.) 
It  will  be  a  means  also  of  finding  out  what  is  the  age 
and  religion  of  the  parties,  and,  if  the  regulations 
regarding  marriage  registration  have  been  observed, 
whether  they  were  married  before.     The  text  of  this 
canon  implies  that  it  should  be  demanded  of  the  non- 
Catholic  party  in  a  mixed  marriage. 

The  certificate  should  be  recent  and  given  with  a 
view  to  marriage.  It  is  not  required  now  that  it 
should  be  authenticated  by  the  Ordinary. 

2.  The  obligation  of  receiving  Confirmation  be- 
fore being  admitted  to  marriage  already  existed  in 
several  places  by  particular  legislation.  It  is  now 
the  common  law,  from  which,  however,  a  grave  incon- 
venience excuses. 

II.   THE  BANNS 

A.  Former  Discipline 

42.  The  examination  of  the  parties  by  the  pastor, 
even  with  the  assistance  of  relatives  and  neighbors 
(Wernz,  n.  135,  note  13 ;  Hefele-Leclercq,  Histoire 
des  Conciles,  tome  iii,  p.  1110),  proved  insufficient, 
and   the   Fathers  of   the   Fourth   Lateran   Council 


thought  it  necessary  to  devise  some  additional  meas- 
ure. For  some  time  previously  it  had  been  the  cus- 
tom or  even  the  law,  in  some  places,  particularly  in 
France,  to  publish  in  church  the  names  of  persons  in- 
tending marriage,  so  that  those  who  knew  of  any 
impediments  to  their  union  might  reveal  them,  and 
those  who  had  any  reason  for  opposing  the  marriage 
would  be  given  an  opportunity  to  do  so.  The  Coun- 
cil of  Lateran  decided  to  extend  that  law  to  the  whole 
Church  (1215).  Apparently  the  law  was  not  ob- 
served everywhere,  for  several  particular  Councils 
find  it  necessary  to  insist  upon  it.  They  also  deter- 
mine more  in  detail  the  mode  of  its  execution;  thus 
some  of  them  command  that  the  banns  be  published 
three  times.  The  Council  of  Trent  renewed  the  law 
of  the  Lateran.  It  is  part  of  the  famous  decree 
Tametsi  on  clandestine  marriages,  which  has  been  in 
force  to  the  present  day  wherever  it  was  published. 
The  clause  concerning  the  banns  could  be  published 
independently  of  the  one  regarding  the  formalities  of 
marriage;  and,  moreover,  where  the  decree  of  Trent 
was  not  published  the  Lateran  decree  remained  in 
force.  In  England  the  First  Council  of  Westmin- 
ster commanded  that  the  banns  of  marriage  be  pub- 
lished. In  the  United  States  the  Sixth  Provincial 
Council  of  Baltimore  (1846)  expresses  the  wish  that 
the  law  of  Lateran  and  of  Trent  be  introduced  into 
all  the  Dioceses  of  the  Province  (p.  244,  iii).  The 
First  Plenary  Council  of  Baltimore  in  1852  made  it 
obligatory  after  Easter  of  1853  (n.  11)  and  that  de- 
cree was  confirmed  by  the_Second  Plenary  Council  in 
1866  (n.  331-333). 


THE  BANNS  53 

B.   The  Present  Law. 

43.  The  present  law  is  nothing  but  the  law  of 
Trent  with  a  few  modifications  which  experience  had 
showed  to  be  necessary  and  most  of  which  had  been 
introduced  already  by  custom  or  indults.     It  will 
have  to  be  interpreted,  therefore,  in  the  same  sense  as 
the  ancient  law,  except  where  it  is  clear  that  a  change 
has  been  made;  and  the  existing  customs  or  local 
legislation  are  not  abrogated  unless  they  are  contrary 
to  the  new  law. 

I.   THE  LAW  ITSELF 

Can.  1022.    Publice  a  parocho  denuntictur  inter 

quosnam  matrimonium  sit  contrahendum. 

44.  The  pastor  shall  publish  pending  mar- 
riages. 

This  canon  is  taken  from  the  decree  Tametsi;  it 
imposes  the  same  grave  obligation  and  is  binding 
everywhere,  in  every  case,  even  when  it  is  morally 
certain  that  there  is  no  impediment  to  the  marriage. 
The  pastor  may  discharge  his  obligation  through  a 
delegate,  but  the  delegate  himself  should  be  a  priest 
or  a  deacon,  not  an  inferior  cleric — still  less  a  lay- 
man, except  in  case  of  necessity.  The  banns  are  not 
required  for  the  validity.  (Tanquerey,  n.  918.) 

II.     MODE   OF   PUBLICATION 

1.°  Place 

Can.  1023.  §  1.  Matrimoniorum  publicationes 
fieri  debent  a  parocho  proprio. 


54     PRELIMINARIES  TO  MARRIAGE 

§  2.  Si  pars  alio  in  loco  per  sex  menses  commo- 
rata  sit  post  adeptam  pubertatem,  parochus  rem  ex- 
ponat  Ordinario,  qui  pro  sua  prudentia  vel  publica- 
tiones  inibi  faciendas  exigat.  vel  alias  probationes 
seu  conjecturas  super  status  libertate  colligendas 
praescribat 

§  3.  Si  aliqua  sit  suspicio  de  contracto  impedi- 
mento,  parochus  etiam  pro  breviore  commoratione 
consulat  Ordinarium,  qui  matrimonium  ne  permit- 
tat,  nisi  prius  suspicio,  ad  normaxn  §  2,  removeatur. 

45.  §  1.  The  banns  of  marriages  ought  to  be 
published  by  the  pastor  of  the  parties. 

§  2.  If  one  of  the  parties  has  lived  in  an- 
other place  for  six  months  after  reaching  the 
age  of  puberty,  the  case  shall  be  submitted  to 
the  Ordinary,  who,  in  his  prudence,  will  either 
demand  that  the  publications  be  made  in  that 
place,  or  that  other  proofs  or  conjectures  be 
gathered  regarding  the  freedom  of  the  party. 

§  3.  If  there  is  some  suspicion  of  the  exis- 
tence of  an  impediment,  the  pastor  shall,  even 
for  a  shorter  residence,  consult  the  Ordinary, 
who  will  not  permit  the  marriage  until  the  sus- 
picion be  removed  by  the  means  suggested  in 
§2. 

46.  1.  The  parochus  proprius  who  is  to  make  the 
publications  is  the  pastor  of  the  place  in  which  the 
parties  have  their  domicile  or  quasi-domicile,  or  if  it 
is  question  of  vagi,  their  residence.     If  both  parties 
have  their  domicile  or  -quasi-domicile  in  the  same 
parish  and  have  never  resided  elsewhere  for  any 


THE  BANNS  55 

length  of  time,  the  banns  are  to  be  published  only  in 
that  parish.  If  their  domicile  or  quasi-domicile  is  in 
different  parishes;  or  if  each  one  has  several  domi- 
ciles or  quasi-domiciles,  according  to  the  strict  letter 
of  the  law,  the  banns  should  be  published  in  all  those 
places,  for  the  pastor  of  each  one  of  them  is  parochus 
domicilii  vel  quasi-domicilii.  If  this  offered  serious 
difficulties  or  seemed  altogether  useless,  dispensation 
would  easily  be  obtained. 

47.  2.  Under  the  new  law  an  investigation  has  to 
be  made  also  in  all  places  in  which  a  person  is  liable 
to  have  incurred  an  impediment,  the  Bishop  being 
judge  of  the  form  the  investigation  will  take.  A 
person  is  liable  to  have  incurred  impediments  in  any 
place  in  which  he  has  spent  six  months  after  reaching 
the  age  of  puberty,  that  is,  12  for  females  and  14  for 
males.  Whether  the  banns  of  marriage  should  be 
published  in  all  those  places,  the  Bishop  is  to  de- 
cide. In  some  cases  this  would  be  very  difficult  or 
of  little  use,  as  when  a  person  has  been  moving  fre- 
quently from  one  parish  to  another,  or  when,  owing 
to  the  frequent  changes  in  the  population,  he  is  en- 
tirely unknown  to  the  residents  of  the  place.  The 
Ordinary  may  in  such  cases  insist  on  the  publications 
or  be  satisfied  with  the  deposition  of  reliable  wit- 
nesses. In  default  of  witnesses,  every  surmise  or 
circumstance  must  be  made  use  of  to  obtain  the  neces 
sary  evidence.  Recourse  may  be  had  to  the  supple- 
tory  oath  and  if  the  party  himself  is  a  trustworthy 
person  his  sworn  testimony  may  be  accepted  as  suffi- 
cient evidence  of  his  freedom  to  marry,  if  no  other 
proof  can  be  obtained. 


56     PRELIMINARIES  TO  MARRIAGE 

48.  3.  When  a  person  has  been  less  than  six  months 
in  a  place  there  is  regularly  no  need  of  publishing  the 
banns  in  that  place  or  of  making  any  investigation. 
If,  however,  there  was  some  positive  reason  to  think 
that  an  impediment  may  have  been  contracted  during 
that  short  period  of  time,  the  investigation  should  be 
made  as  in  the  preceding  case.  The  merely  possible 
existence  of  an  impediment  is  not  sufficient  to  make 
the  investigation  obligatory;  there  must  be  some 
probability,  some  foundation,  not  necessarily  very 
strong,  for  the  belief  or  suspicion. 

No  information  is  required  from  the  place  of 
origin  as  such  and  consequently  none  will  be  neces- 
sary, outside  of  the  baptism  certificate,  if  that  place 
was  left  before  attaining  the  age  of  puberty. 

2.°  Time 

Can.  1024.  Publicationes  fiant  tribus  continuis 
diebus  dominicis  aliisque  festis  de  praecepto  in  ec- 
clesia  inter  Missarum  sollemnia,  aut  inter  alia  di- 
vina  officia  ad  quae  populus  frequens  accedat. 

49.  The  banns  shall  be  published  on  three  suc- 
cessive Sundays  or  feast-days  of  obligation  in 
the  church,  during  Mass  or  during  any  service 
at  which  there  is  a  large  attendance  of  people. 

1.  The   Lateran    Council    did   not   specify   any- 
thing about  the  number  of  publications ;  the  Council 
of  Trent  demanded  three ;  the  present  law  also.     In 
practice  the  banns  are  very  seldom  published  three 
times,  at  least  in  many  countries. 

2.  The  publications  are  to  be  made  on  three  suc- 
cessive Sundays,  or  least-days  of  obligation.     It  is 


THE  BANNS  57 

commonly  admitted  that  the  publications  can  be 
made  on  feast-days  formerly  of  obligation  and  that 
those  could  be  three  successive  days.  (De  Smet,  n. 
38.) 

3.  The  "church"  has  been  interpreted  as  the  par- 
ish church  or  one  used  as  parish  church,  like  mission 
churches,  chapels  of  ease,  ecclesice  filice  (S.  C.  C., 
1901),  but  not  public  or  semi-public  chapels.  Some 
thought,  however,  that  considering  the  end  of  the 
law  it  is  not  the  place  that  matters  most,  but  the  pres- 
ence of  the  people,  and  that  therefore  the  banns  might 
be  published  in  chapels,  or  even  any  place  in  which 
Mass  would  be  celebrated  with  a  large  concourse  of 
people.  For  the  same  reason,  they  would  readily 
permit  the  publication  of  the  banns,  under  the  same 
circumstances  during  some  other  services  than  the 
parish  Mass.  This  latter  extension  is  admitted  by 
the  present  law,  and  would  seem  to  imply  the  former 
also.  The  parish  Mass  and  parish  church  remain  the 
regular  time  and  place  for  publishing  the  banns,  but 
it  may  be  done  also  during  other  services  if  the  end 
of  the  law  can  thereby  be  attained.  What  the  con- 
course of  people  should  be  is  not  determined.  If  it 
is  as  large  as  it  usually  is  at  the  parish  Mass  it  muat 
be  considered  sufficient. 

3.°  Form 

Can.  1025.  Potest  loci  Ordinarius  pro  suo  terri- 
torio  publicationibus  substituere  publicam,  ad  val- 
vas  ecclesiae  paroecialis  aliusve  ecclesiae,  affixionem 
nominum  contrahentium  per  spatium  saltern  octo 
dierum,  ita  tamen  ut,  hoc  spatio,  duo  dies  festi  de 
praecepto  comprehendantur. 


58     PRELIMINARIES  TO  MARRIAGE 

50.  The  Ordinary  may  in  his  territory  sub- 
stitute for  the  publications  the  public  posting 
of  the  names  of  the  contracting  parties  on  the 
door  of  the  parish  or  other  church  for  a  period 
of  at  least  eight  days,  so  that,  however,  within 
that  time  be  included  two  days  of  obligation. 

51.  1.  Heretofore   the   publications   were   to   be 
made  orally,  and  this  remains  the  ordinary  form,  but 
the  new  law  permits   another  one.      It  had  been 
adopted  long  ago  in  civil  matters  when,  the  people 
having  learned  to  read,  it  was  possible  to  reach  them 
otherwise  than  through  the  public  crier. 

Even  under  the  ancient  discipline,  St.  Alphonsua 
admitted  that  in  cases  of  real  necessity  the  marriages 
might  be  published  in  writing  (Lib.  vi,  n.  991).  In 
some  places  to  the  proclamation  during  Mass  was 
added  the  posting  at  the  door  of  the  church  (Prov. 
Council  of  Naples,  an.  1669,  tit.  iii,  c.  9;  Council  of 
New  Granada,  1868,  tit.  iv,  c.  11.) 

In  1907  the  Cardinal- Archbishop  of  Paris  repre- 
sented to  the  Sacred  Congregation  of  the  Council  that 
in  the  large  parishes  of  his  diocese  there  were  so 
many  banns  to  be  published  and  so  many  announce- 
ments to  be  made  that  little  time  was  left  for  the  ser- 
mon, the  people  became  tired,  hardly  listened  to  what 
was  read,  and  deserted  the  parochial  Mass.  Those 
inconveniences  would  be  avoided  and  the  end  of  the 
law  better  attained,  it  was  suggested,  if,  instead  of 
reading  those  announcements  from  the  pulpit,  they 
were  posted  in  some  conspicuous  place  where  the 
faithful  could  easily  read  them.  It  was  asked, 


THE  BANNS  59 

therefore,  that  an  indult  to  that  effect  be  granted  for 
the  parishes  of  ten  thousand  inhabitants  or  more. 
After  remarking  that  this  would  be  a  departure  from 
the  common  law,  the  consultor  of  the  Congregation 
nevertheless  reported  favorably  on  the  subject;  the 
request  was  granted  and  specially  approved  by  the 
Sovereign  Pontiff,  March  28,  1908.  The  same  con- 
cession was  soon  after  asked  for  and  obtained  by  the 
Bishops  of  Milan,  Lyons,  Le  Mans,  and  others.  Now 
all  Ordinaries  may  grant  permission  to  publish  the 
banns  in  writing  both  in  the  small  and  in  the  larger 
parishes  of  their  diocese  (N.  K.  T.,  Nov.,  1908). 

52.  2.  The  names  must  be  posted  in  a  conspicuous 
place  at  the  door  of  the  church  for  at  least  eight  days, 
including  two  days  of  obligation,  two  Sundays,  or 
one  Sunday  and  one  feast-day.  What  these  publi- 
cations should  include  is  not  stated  here  in  detail ;  it 
must  be  all  that  is  required  to  attain  the  end  of  the 
law.  The  rituals,  diocesan  statutes,  or  custom  deter- 
mine the  form  to  be  used.  Ordinarily  it  calls  for  the 
full  name  of  the  contracting  parties,  their  place  of 
origin,  and  actual  residence,  etc. ;  it  reminds  the 
people  of  their  duty  of  revealing  any  impediments 
they  might  know.  (De  Smet,  n.  39 ;  Tanquerey,  n. 
986.) 

HI.   PUBLICATIONS  OP  MIXED   MABEIAGBS 

Can.  1026.  Publicationes  ne  fiant  pro  matrimoniis 
quae  contrahuntur  cum  dispensatione  ab  impedi- 
menta disparitatis  cultus  aut  mixtae  religionis,  nisi 
loci  Ordinarius  pro  sua  prudentia,  remote  scandalo, 
eas  permittere  opportunum  duxerit,  dummodo  apos- 


60     PRELIMINARIES  TO  MARRIAGE 

tolica  dispensatio  praecesserit  et  mentio  omittatur 
religionis  partis  non  catholicae. 

53.  Marriages  contracted  with  a  dispensa- 
tion from  the  impediment  of  mixed  religion  or 
disparity  of  cult  should  not  be  published,  unless 
the  Ordinary  of  the  place,  in  prudent  judgment, 
all  danger  of  scandal  being  removed,  deems  it 
opportune  to  permit  the  publications,  provided 
the  apostolic  dispensation  has  been  previously 
obtained  and  no  mention  is  made  of  the  religion 
of  the  non- Catholic  party. 

The  discipline  on  this  point  has  not  been  uniform 
— usually  the  banns  were  not  published  for  mixed 
marriages.  A  decree  of  the  Holy  Office,  July  4, 
1874,  permitted  their  publication.  Now  it  is  left  to 
the  prudence  of  the  Ordinary  to  permit  it,  if  deemed 
advisable.  Regularly  it  is  prohibited. 

IV.  DUTY  OP  THE  FAITHFUL 

Can.  1027.  Omnes  fideles  tenentur  impedimenta, 
si  qua  norint,  parocho  aut  loci  Ordinario,  ante  matri- 
monii  celebrationem,  revelare. 

54.  All  the  faithful  are  bound  to  reveal  to  the 
pastor  or  to  the  Ordinary  of  the  place,  the  im- 
pediments they  may  know  before  the  marriage 
is  celebrated. 

This  obligation  is  a  grave  one,  and  arises  from 
the  natural  and  divine  as  well  as  from  the  ecclesias- 
tical law.  It  is  binding  on  all  the  faithful  without 
distinction,  even,  or  principally,  on  near  relations. 


THE  BANNS  61 

To  be  excused  would  require  a  really  grave  reason, 
such  as  sacramental  or  professional,  not  merely 
natural  or  promised,  secrecy,  a  grave  personal  injury, 
etc.  (De  Smet,  n.  44.) 

V.   DISPENSATION 

Can.  1028.  §  1.  Loci  Ordinarius  proprius  pro 
suo  prudenti  judicio  potest  ex  legitima  causa  a 
publicationibus  etiam  in  aliena  dioecesi  faciendis 
dispensare. 

§  2.  Si  plures  sint  Ordinarii  proprii,  ille  jus 
habet  dispensandi,  in  cujus  dioecesi  matrimonium 
celebratur;  quod  si  matrimonium  extra  proprias  in- 
eatur  dioeceses,  quilibet  Ordinarius  proprius  dis- 
pensare potest. 

55.  §  1.  It  is  left  to  the  prudent  decision  of 
the  Ordinary  of  the  place  to  dispense  his  sub- 
jects, for  a  legitimate  cause,  from  the  publica- 
tions even  when  they  have  to  be  made  in  another 
diocese. 

§  2.  If  several  Ordinaries  have  jurisdiction 
in  the  case,  he  has  the  right  to  dispense  in  whose 
diocese  the  marriage  is  to  be  celebrated;  if  the 
marriage  is  to  be  celebrated  outside  of  their 
dioceses,  any  one  of  the  Ordinaries  has  right  to 
dispense. 

1.  Under  the  Lateran  discipline  no  one  had  power 
to  dispense  from  the  banns  except  the  Pope  or  his 
delegate.  The  Council  of  Trent,  sanctioning  per- 
haps an  existing  custom,  granted  that  power  to  the 


62     PRELIMINARIES  TO  MARRIAGE 

Ordinary.  The  present  law  maintains  the  conces- 
sion, and,  moreover,  it  authoritatively  decides  that 
even  when  the  publications  should  be  made  in  another 
diocese  the  dispensation  may  still  be  granted  by  the 
Ordinary  of  the  parties. 

56.  The  Ordinary  may  dispense  when  it  is  prudent 
and  there  is  a  legitimate  cause.  It  would  not  be  pru- 
dent if  there  existed  some  positive  reason  to  believe 
that  an  impediment  may  be  discovered.  If  it  is 
morally  certain  that  no  impediment  exists,  the  wish 
of  the  parties  might  be  a  sufficient  cause  for  dispens- 
ing. (Gasparri,  n.  185 ;  St.  Alphonsus,  vi,  1006 ; 
De  Smet,  n.  43,  after  Benedict  XIV,  would  seem 
more  severe.)  A  graver  reason  is  required  to  dis- 
pense from  all  publications  than  to  dispense  from 
one.  (Gasparri,  n.  186 ;  De  Smet,  n.  43.)  The  Or- 
dinary who  has  no  personal  knowledge  of  the  parties 
or  of  the  circumstances  of  the  case  must,  for  that, 
depend  on  the  testimony  of  the  pastor.  Measures 
have  always  to  be  taken  to  discover  the  impediments 
if  there  were  any. 

2.  If  the  parties  have  domiciles  or  quasi-domiciles 
in  various  dioceses,  they  also  have  several  Ordinarii 
proprii.  The  dispensation  would  have  to  be  granted 
by  the  Ordinary  in  whose  diocese  the  marriage  is  to 
be  celebrated.  It  is  an  application  of  the  principle: 
locus  regit  actum.  But  if  one  of  the  parties  had  his 
domicile,  for  example,  in  the  diocese  of  San  Fran- 
cisco, the  other  had  a  domicile  in  the  diocese  of 
Chicago  and  a  quasi-domicile  in  the  diocese  of  New 
York,  and  the  marriage  was  to  take  place  in  the  dio- 
cese of  Baltimore,  dispensation  from  the  publications 


THE  BANNS  63 

conld  be  granted  by  the  Ordinary  of  San  Francisco, 
or  of  Chicago,  or  of  New  York. 

VI.   NOTIFICATION 

Can.  1029.  Si  alius  parochus  investigationem  aut 
publicationes  peregerit,  de  harum  exitu  statim  per 
authenticum  documentum  certiorem  reddat  paro- 
chum,  qui  matrimonio  assistere  debet. 

57.  If  another  pastor  makes  the  investigation 
or  publishes  the  banns,  he  shall  without  delay 
send  official  notification  of  the  results  to  the 
pastor  who  is  to  assist  at  the  marriage. 

This  is  practical  when  the  parties  belong  to,  or 
have  lived  in,  different  parishes.  It  is  not  demanded 
that  the  report  of  the  pastor  belonging  to  another 
diocese  be  authenticated  by  his  Ordinary  as  long  as 
there  is  no  doubt  about  the  genuineness  and  official 
character  of  the  document. 

vn.  SANCTION 

58.  According  to  the  Lateran  Council,  priests  who 
disregard  the  law  of  the  banns  should  be  suspended 
for  three  years,  and  may  be  punished  more  severely. 
The  parties  who  do  the  same  should  be  given  a  pen- 
ance.    If  their  marriage  happens  to  be  null  because 
of  a  diriment  impediment  it  will  be  harder  to  obtain 
a  dispensation  and  their  children  will  be  considered 
illegitimate,  even  if  the  marriage  had  been  contracted 
before  the  Church,  unless,  according  to  some  canon- 
ists, one  or  both  parties  had  acted  in  good  faith.     No 


64     PRELIMINARIES  TO  MARRIAGE 

penalty  is  imposed  by  the  Council  upon  witnesses 
who  assist  at  such  marriage,  but  diocesan  synods  have 
often  done  so.  The  Council  of  Trent  did  not  renew 
those  penalties.  Still,  they  were  not  considered  as 
abrogated  for  that  reason.  There  is  no  mention  of 
them  in  the  present  law. 

III.  RESULTS  OF  THE  INVESTIGATION 
AND  PUBLICATIONS 

1.°    DELAY  REQUIRED 

Can.    1030.     §  1.    Peractis  investigationibus  ct 

publicationibus,  parochus  matrimonio  ne  assistat, 
antequam  omnia  documenta  necessaria  receperit,  ct 
praeterea,  nisi  rationabilis  causa  aliud  postulet,  tres 
dies  decurrerint  ab  ultima  publicatione. 

§  2.  Si  intra  sex  menses  matrimoniurn  contrac- 
tum  non  fuerit,  publicationes  repetantur,  nisi  aliud 
loci  Ordinario  videatur. 

59.  §  1.  After  the  investigation  and  the  pub- 
lications of  banns,  the  pastor  shall  not  proceed 
to  the  marriage  before  he  has  received  all  the 
necessary  documents,  and,  moreover,  except  for 
a  grave  cause,  before  three  days  have  elapsed 
since  the  last  publication. 

§  2.  If  the  marriage  has  not  been  contracted 
within  six  months,  the  publications  should  be 
repeated  unless  the  Ordinary  of  the  place  de- 
cides otherwise. 

1.  The  documents  here  referred  to  are  the  reports 
of  other  pastors,  the  denunciations  of  the  faithful, 


or  any  other  information  that  may  be  needed  or  may 
come  as  a  result  of  the  proclamations. 

2.  Formerly  the  publications  had  to  be  repeated 
after  two  months  in  some  places,  after  six  in  others. 
No  reason  is  explicitly  required  by  the  law  for  dis- 
pensing from  that  obligation. 

2.°    IMPEDIMENTS  DISCOVEBED 

Can.  1031.  §  1.  Exorto  dubio  de  exsistentia  ali- 
cujus  impedimenta : 

1.°  Parochus  rem  accuratius  investiget,  interro- 
gando  sub  juramento  duos  saltern  testes  fide  dignos, 
dummodo  ne  agatur  de  impedimento  ex  cujus  no- 
titia  infamia  partibus  oriatur,  et,  si  necesse  fuerit, 
ipsas  quoque  partes; 

2.°  Publicationes  peragat  vel  perficiat,  si  dubium 
ortum  sit  ante  inceptas  vel  expletas  publicationes ; 

3.°  Matrimonio  ne  assistat,  inconsulto  Ordi- 
nario,  si  dubium  adhuc  superesse  prudenter  judi- 
caverit. 

§  2.    Detecto  impedimento  certo: 

1.°  Si  imped  imentum  sit  occultum,  parochus 
publicationes  peragat  vel  absolvat,  et  rem  deferat, 
reticens  nomina,  ad  loci  Ordinarium  vel  ad  Sacram 
Poenitentiariam ; 

2.°  Si  sit  publicum  et  detegatur  ante  inceptas 
publicationes,  parochus  ulterius  ne  procedat,  donee 
impedimentum  removeatur,  etsi  dispensationem  pro 
f oro  conscientiae  tantum  obtentam  norit ;  si  detega- 
tur post  primam  aut  secundam  publicationem,  pa- 
rochus publicationes  perficiat,  et  rem  ad  Ordinarium 
deferat. 

§  3.  Demum  si  nullum  detectum  fuerit  impedi- 
mentum, nee  dubium  nee  certum,  parochus,  ex- 


66     PRELIMINARIES  TO  MARRIAGE 

pletis  publicationibus,  ad  matrimonii  celebrationem 
partes  admittat. 

60.  §  1.  If  a  doubt  arises  about  the  existence 
of  an  impediment : 

1.°  The  pastor  shall  investigate  the  matter 
more  carefully,  interrogating,  under  oath,  at 
least  two  trustworthy  witnesses,  provided  the 
impediment  be  not  one  of  those  which  can  not 
become  known  without  injury  to  the  reputa- 
tion of  the  parties ;  if  necessary,  he  may  inter- 
rogate the  parties  themselves. 

2.°  He  may  proceed  to  the  publications  or 
complete  them  if  the  doubt  arises  before  they 
were  begun  or  completed. 

3.°  He  shall  not  assist  at  the  marriage,  with- 
out consulting  the  Ordinary,  as  long  as  a  pru- 
dent doubt  remains. 

§  2.  When  it  is  discovered  that  an  impedi- 
ment is  certainly  present: 

1.°  If  the  impediment  is  occult,  the  pastor 
shall  continue  or  complete  the  publications,  and 
refer  the  matter,  without  mentioning  names, 
to  the  Ordinary  of  the  place  or  to  the  Sacred 
Penitentiary. 

2.°  If  the  impediment  is  public  and  conies  to 
light  after  the  publications  were  begun,  the 
pastor  shall  not  go  further  till  the  impediment 
is  removed,  even  if  dispensation  from  it  had, 
to  his  knowledge,  been  obtained  for  the  internal 
forum  alone;  if  that  impediment  is  discovered 
after  the  first  or  second  publication,  the  pastor 


RESULTS  OF  THE  INVESTIGATION  67 

shall  complete  the  publications  and  refer  the 
case  to  the  Ordinary. 

§  3.  Finally,  if  no  impediment  is  discovered, 
either  doubtful  or  certain,  the  pastor  must,  once 
the  publications  are  completed,  admit  the  par- 
ties to  the  celebration  of  marriage. 

The  result  of  the  investigation  or  publications 
may  be  that  there  is  probable  or  certain  evidence  or 
no  evidence  at  all  of  the  existence  of  impediments  in 
the  case. 

61.  1.  It  is  not  lawful  to  contract  a  marriage  with- 
out being  morally  certain  that  there  exists  no  impedi- 
ment to  it,  except  in  some  cases  of  absolute  impedi- 
ments— the  sacrament  would  be  exposed  to  the  danger 
of  nullity  and  the  parties  would  run  the  risk  of  form- 
ing a  sinful  union.     Consequently,  as  long  as  there 
remains   a  reasonable  cause  for   doubt,   the  pastor 
should  not  take  upon  himself  to  decide  the  case,  but 
should  consult  the  Ordinary,  who  will  see  whether 
or  not  the  marriage  may  be  permitted. 

Efforts  ought  to  be  made  to  dispel  the  doubt;  one 
of  the  means  is  to  interrogate  two  reliable  persons. 

Meanwhile,  the  pastor  may  go  on  with  the  publica- 
tions. 

62.  2.  If  the  existence  of  an  impediment  is  dis- 
covered and  the  impediment  is  occult,  the  pastor  goes 
on  with  the  publications,  as  there  exists  no  external 
reason  why  he  should  stop ;  and  he  applies  for  a  dis- 
pensation, taking  care  that  nothing  be  said  or  done 
which  would  be  calculated  to  make  known  the  parties 
concerned. 


68     PRELIMINARIES  TO  MARRIAGE 

If  the  impediment  is  public  there  is  no  reason  to 
begin  the  publications,  if  they  are  not  yet  begun,  till 
the  impediment  is  removed.  This  would  hold  even 
if  dispensation  for  the  internal  forum  alone  had  been 
obtained,  for  such  a  dispensation  has  no  effect  in  the 
external  forum. 

If  the  publications  are  already  begun,  there  is  no 
reason  not  to  complete  them,  at  least  if  the  impedi- 
ment is  one  of  those  which  can  be  removed. 

3.  If  there  is  no  evidence  of  any  impediment,  the 
marriage  if  permitted. 

IV.   THE  VAGI 

Can.  1032.  Matrimonio  vagorum  de  quibus  in 
can.  91,  parochus,  excepto  casu  necessitatis,  nun- 
quam  assistat,  nisi,  re  ad  loci  Ordinarium  vel  ad 
sacerdotem  ab  eo  delegatum  delata,  licentiam  assis- 
tendi  obtinuerit. 

63.  Except  in  case  of  necessity,  the  pastor 
shall  never  assist  at  the  marriage  of  those  who 
have  no  fixed  abode  without  referring  the  mat- 
ter to  the  Ordinary  or  to  the  priest  delegated 
by  him,  and  obtaining  permission. 

As  these  cases  offer  special  difficulties,  they  require 
special  skill  and  attention.  The  Council  of  Trent  it- 
self (Sess.  xxiv,  de  Ref.  Mat.,  cap.  7)  had  decreed 
that  they  be  referred  to  the  Ordinary.  This  was  an 
old  rule,  dictated  by  prudence  and  contained  in  many 
rituals.  In  order  that  it  may  more  easily  be  ob- 
served, the  present  law  supposes  that  the  Ordinary 
will  appoint  a  priest  to  attend  to  those  cases  if  he 
can  not  do  so  himself. 


CONSENT  OF  PARENTS  69 

V.  INSTRUCTIONS  TO  THE  SPOUSES 

Can.  1033.  Ne  omittat  parochus,  secundum 
diversam  personarum  conditionem,  sponsos  docere 
sanctitatem  sacramenti  matrimonii,  mutuas  conju- 
gum  obligationes  et  obligationes  parentum  erga  pro- 
lem;  eosdemque  vehementer  adhortetur  ut  ante 
matrimonii  celebrationem  sua  peccata  diligenter 
confiteantur,  et  sanctissimam  Eucharistiam  pie  re- 
cipiant. 

64.  The  pastor  shall  not  omit  to  give  to  the 
spouses,  according  to  their  different  conditions, 
instructions  on  the  sanctity  of  the  sacrament  of 
marriage,  their  mutual  obligations,  the  obliga- 
tions of  parents  towards  their  children ;  he  shall 
strongly  exhort  them  before  marriage  to  make 
a  good  confession  of  their  sins  and  to  receive 
devoutly  the  Holy  Eucharist. 

65.  1.  Instructions   on   marriage   may  be   given 
from  the  pulpit  to  the  whole  congregation  or  privately 
to  persons  about  to  marry.     It  is  to  the  private  in- 
struction that  this  canon  has  reference.     It  must  be 
adapted  to  the  individual  needs.     Some  persons  may 
need  more,  some  less.     The  law  supposes  that  all 
need  some,  with  possibly  a  few  exceptions. 

2.  By  the  general  law  of  the  Church,  confession  or 
communion  are  not,  strictly  speaking,  obligatory  be- 
fore marriage.  They  may  be  so  by  particular  statute, 
and  in  all  cases  they  are  strongly  recommended. 

VI.  CONSENT  OF  PARENTS 
Can.  1034.    Parochus  graviter  filiosfamilias  min- 
ores  hortetur  ne  nuptias  ineant,  insciis  aut  ration- 


70     PRELIMINARIES  TO  MARRIAGE 

abiliter  invitis  parentibus ;  quod  si  abnuerint,  corum 
matrimonio  ne  assistat,  nisi  consulto  prius  loci  Or- 
dinario. 

66.  The  pastor  shall  seriously  admonish  chil- 
dren, still  under  age,  not  to  contract  marriage 
without  the  knowledge  or  against  the  reason- 
able opposition  of  their  parents ;  if  they  do  not 
heed  his  advice  he  shall  not  assist  at  their  mar- 
riage except  after  consulting  the  Ordinary. 

1.  According  to  Roman  law,  children  could  not 
contract  marriage  validly  without  the  consent  of 
their  parents.  In  the  countries  subject  to  Roman 
legislation,  the  Church,  in  the  beginning,  laid  stress 
also  on  the  necessity  of  parental  consent  for  mar- 
riage; in  some  places  it  became  necessary  even  for 
the  validity  of  the  contract,  although  there  is  no  proof 
that  this  discipline  was  ever  extended  to  the  whole 
Church  by  a  general  law.  (Wernz,  n.  334;  De 
Smet,  n.  250;  Esmein,  v.  1,  p.  153.)  Little  by  little, 
however,  as  the  matrimonial  jurisdiction  of  the 
Church  was  more  generally  recognized  and  the  ca- 
nonical legislation  became  more  independent  of  the 
civil,  the  rights  of  children  were  more  explicitly  set 
forth.  By  the  end  of  the  twelfth  century,  chiefly 
under  the  influence  of  Peter  Lombard  and  the  Uni- 
versity of  Paris,  it  was  admitted  that  they  could  con- 
tract marriage  validly  and  even  lawfully,  under  cer- 
tain circumstances,  in  spite  of  the  opposition  of  par- 
ents. 

The  revival  of  legal  studies  and  the  influence  of 
legists  brought  on  a  reaction  in  favor  of  the  Roman 


CONSENT  OF  PARENTS  71 

law,  in  the  latter  Middle  Ages.  Luther  and  Eras- 
mus, like  the  old  Roman  jurists,  taught  that  it  is  in 
the  power  of  parents  to  annul  the  marriage  of  their 
children.  (Gasparri,  n.  486.)  The  Council  of 
Trent  anathematized  that  doctrine,  and,  moreover, 
when  asked,  principally  by  the  representative  of  the 
king  of  France,  to  decree  that  children  could  not 
marry  validly  without  the  parents'  consent,  it  re- 
jected the  request  and  upheld  the  principle  of  the 
independent  right,  even  of  minors,  to  dispose  of  them- 
selves in  marriage.  Children,  however,  were 
directed  to  consult  their  parents  before  taking  so  im- 
portant a  step,  and  Bishops  considered  it  in  keeping 
with  the  spirit  of  the  Council  to  forbid  pastors  to 
assist  at  the  marriage  of  children  who  disregarded 
that  direction,  without  the  Ordinary's  advice. 

67.  2.  The  present  law  renews  implicitly  the  deci- 
sion of  Trent  and  officially  sanctions  the  interpreta- 
tion which  had  been  given  of  it,  maintaining  the  right 
of  children,  but  affirming  their  duties  to  parents.  It 
clearly  implies  that  children  can  marry  validly  with- 
out their  parents'  consent;  it  does  not  say  that  they 
are  strictly  bound  to  obey  their  command  in  the 
choice  of  the  marriage  state  or  of  the  partner — al- 
though gratitude  and  love  might  prompt  them  to  do 
so — but  if  they  choose  to  marry  they  should  consult 
their  parents.  The  nature  of  the  relations  existing 
between  them  demands  it.  Should  the  parents  rea- 
sonably oppose  the  marriage,  it  should  not  be  per- 
mitted without  the  Ordinary's  advice.  A  distinc- 
tion is  made  here  between  reasonable  and  unreason- 
able opposition. 


72     PRELIMINARIES  TO  MARRIAGE 

If  the  opposition  is  unreasonable,  children,  no 
doubt,  remain  free;  although  even  then  it  might  be 
better  for  them,  when  convenient,  to  yield  to  the 
parents'  desires.  If  the  opposition  is  reasonable,  it 
would  be  sinful  for  children  to  persist  in  their  deter- 
mination ;  and  if  they  did,  they  should  be  treated  as 
persons  who  do  not  show  the  proper  dispositions  for 
the  sacrament.  This,  however,  does  not  necessarily 
mean  that  the  pastor  will  never  be  permitted  by  the 
Ordinary  to  bless  those  marriages ;  nor  that  a  dispen- 
sation is  necessary  and  sufficient  to  render  them  fully 
legitimate,  as  if  want  of  parental  consent  was  a  pro- 
hibitive impediment  properly  so  called.  The  Church 
is  simply  enforcing  here  a  precept  of  the  natural  law, 
the  duty  of  prudence  and  of  reverence  to  parents ;  and 
she  considers  it  important  enough  to  require  the  in- 
tervention of  the  Bishop  for  deciding  when  it  ceases 
to  bind  or  when  its  violation  may  be  tolerated.  When 
by  reason  of  their  age  or  other  circumstances  children 
are  no  more,  by  natural  right,  under  parental  author- 
ity, the  Church  does  not  impose  upon  them  the  duty 
of  subjection  in  marriage  matters.  The  law  is  for 
the  Filiifamilias,  legitimate  children,  under  age,  who 
have  not  been  emancipated;  in  practice  it  means 
minors.  (De  personis,  can.  89.) 


CHAPTER  II 

OF  IMPEDIMENTS  IN  GENERAL.  NATURE, 
SPECIES;  POWER  TO  ESTABLISH,  AB- 
ROGATE, DISPENSE  EROM,  THEM 

I.   NATURE:  GENERAL  PRINCIPLE 

Can.  1035.  Omnes  possunt  matrimonium  contra- 
here,  qui  jure  non  prohibentur. 

68.  All  can  contract  marriage  who  are  not 
forbidden  by  law. 

It  is  an  axiom  in  canon  law  that  all  men  have 
from  nature  the  right  to  marry.  They  retain  it  until 
it  is  legitimately  taken  away  from  them;  they  may 
exercise  it  unless  forbidden,  and  they  are  supposed 
to  possess  it  and  to  be  free  to  exercise  it  until  the  con- 
trary be  proven. 

This  right,  however,  is  not  absolute,  nor  absolutely 
free  in  its  exercise.  Marriage,  established  primarily 
for  the  good  of  the  race  and  only  secondarily  for  that 
of  the  individual,  must  be  under  the  control  of  the 
social  authority;  it  is  a  contract  and,  like  any  other 
contract,  it  must  be  subject  to  certain  regulations 
which  may  render  it  unlawful  or  invalid.  Obstacles 
to  a  valid  or  lawful  marriage  are  called  impediments. 
(Gasparri,  n.  244;  Wernz,  n.  217;  De  Smet,  n.  234; 
Esmein,  vol.  i,  p.  203;  Catholic  Encyclopedia,  Im- 
pediments.) 

73 


74        IMPEDIMENTS  IN  GENERAL 
II.  SPECIES 

1.°    PROHIBITIVE    OB   DIBIMENT   IMPEDIMENTS 

Can.  1036.  §  1.  Impedimentum  impediens  con- 
tinet  gravem  prohibitionem  contrahendi  matrimon- 
ium;  quod  tamen  irritum  non  redditur  si,  non 
obstante  impedimento,  contrahatur. 

§  2.  Impedimentum  dirimens  et  gravitcr  pro- 
hibet  matrimonium.  contrahendum,  et  impedit 
quominus  valide  contrahatur. 

§  3.  Quanquam  impedimentum  ex  una  tantum 
parte  se  habet,  matrimonium  tamen  reddit  aut  illi- 
citum  aut  invalidum. 

69.  §  1.  A  prohibitive  impediment  renders  a 
marriage  gravely  unlawful;  but,  if  contracted, 
the  marriage  is  not  invalid. 

§  2.  A  diriment  impediment  both  gravely 
forbids  a  marriage  and  prevents  it  from  being 
contracted  validly. 

§  3.  Even  when  the  impediment  exists  only 
on  one  side  it  renders  marriage  illicit  or  invalid. 

1.  Laws  may  have  a  twofold  effect — to  render 
an  act  illicit,  or  to  render  it  invalid.  When  an  act 
is  invalid  it  is  usually  illicit  also ;  but  it  may  be  un- 
lawful without  being  therefore  null.  A  man  may  be 
simply  forbidden  to  use  his  power,  or  the  power  may 
be,  as  it  were,  taken  away  from  him  or  so  bound  that 
he  can  not  use  it.  The  civil  authority  can  do  this  in 
regard  to  civil  contracts;  the  Church  must  be  em- 
powered to  do  it  in  regard  to  marriage,  which,  by 
being  raised  to  the  dignity  of  a  sacrament,  became  a 


SPECIES  OF  IMPEDIMENTS         75 

religious  contract,  but  did  not  lose  its  nature  of  con- 
tract. 

2.  An  impediment  may  affect  only  one  of  the  par- 
ties, as,  for  instance,  a  vow  or  the  bond  of  a  former 
marriage;  but  even  then  the  contract  will  be  unlaw- 
ful or  invalid  for  both  parties.  A  person,  although 
free  himself,  is  not  allowed  to  marry  one  who  is  not, 
and  if  one  of  the  parties  is  incapable  of  making  the 
contract,  there  can  be  no  contract  for  the  other. 

2.°    PUBLIC   AND   OCCULT   IMPEDIMENTS 

Can.  1037.  Publicum  censetur  impedimentum 
quod  probari  in  foro  externo  potest ;  secus  cst  occul- 
tum. 

70.  An  impediment  is  considered  public  when 
it  can  be  proved  in  the  external  forum;  other- 
wise it  is  occult. 

Canonists  explain  this  distinction  in  two  senses. 
When  it  is  a  question  of  revalidating  a  marriage 
the  impediment  is  considered  public  if  it  can  be 
proved  in  open  court,  and  two  or  three  witnesses 
are  sufficient  for  that.  When  it  is  a  question  of  ob- 
taining a  dispensation  from  the  S.  Penitentiary,  an 
impediment  is  considered  occult  if  it  is  so  both  by  its 
nature  and  in  fact.  It  is  altogether  occult  in  fact  if 
it  is  known  only  to  the  parties  and  the  confessor ;  and 
simply  occult  if  it  is  known  only  to  a  few  persons 
(as,  v.g.,  five  or  six  in  a  small  town),  without  any 
danger  of  its  becoming  more  commonly  known.  The 
present  law  calls  public  those  impediments  that  can 
be  proved  in  open  court,  without  any  distinction ;  and 


76        IMPEDIMENTS  IN  GENERAL 

it  is,  no  doubt,  in  that  sense  that  "public"  and  "oc- 
cult" will  have  to  be  understood  in  the  canons  which 
follow.  (Gasparri,  n.  251;  De  Smet,  n.  235.) 

3,°    OTHER  IMPEDIMENTS 

71.  Impediments  are  further  divided  into  those  of 
the  divine,  natural  and  positive  law ;  of  the  ecclesias- 
tical and  civil  law;  into  absolute  and  relative,  per- 
petual and  temporary,  certain  and  doubtful.     The 
meaning  of  these  terms  required  no  definition. 

III.   AUTHORITY  TO  CONSTITUTE 
IMPEDIMENTS 

1.°   THE  SUPREME  ECCLESIASTICAL  AUTHORITY 

Can.  1038.  §  1.  Supremae  tantum  auctoritatis 
ecclesiasticae  est  authentice  declarare  quandonam 
jus  divinum  matrimonium  impediat  vel  dirimat. 

§  2.  Eidem  supremae  auctoritati  privative  jus 
est  alia  impedimenta  matrimonium  impedientia  vel 
dirimentia  pro  baptizatis  constituendi  per  modum 
legis  sive  universalis  sive  particularis. 

72.  §  1.  It  belongs  to  the  supreme  ecclesiasti- 
cal  authority   alone   to   declare   authentically 
when  the  divine  law  renders  a  marriage  illicit 
or  invalid. 

§  2.  To  the  same  supreme  authority  belongs 
exclusively  the  right  to  establish,  for  persons 
baptized,  other  impediments,  prohibitive  or 
diriment,  by  way  of  universal  or  particular  law. 

1.  Which  impediments- are  of  natural  or  divine 
positive  law,  how  far  they  extend,  are  questions  which 


AUTHORITY  TO  CONSTITUTE       77 

canonists  may  discuss,  but  which  only  the  Church,  as 
God's  representative  and  the  official  interpreter  of 
His  will,  can  decide.  And,  in  the  Church,  although 
the  Bishops  share  in  the  mission  to  teach,  that  deci- 
sion is  reserved  to  the  supreme  authority,  because  of 
its  importance  and  for  the  sake  of  uniformity. 

73.  2.  To  the  impediments  of  natural  or  divine 
positive  law  the  Church,  as  said  above,  may  add 
others,  prohibitive  or  diriment,  which  are  binding  on 
all  Christians  and  on  them  alone,  for  the  Church  has 
authority  over  all  men  who  by  baptism  have  become 
members  of  Christ's  flock;  and  she  has  repeatedly 
manifested  her  intention  that  her  marriage  laws 
should  bind  heretics  also,  unless  otherwise  stated. 

Such  power  may  be  exercised  by  way  of  general 
law,  of  particular  law,  or  of  particular  precept.  To 
exercise  it  by  way  of  general  law  requires  universal 
jurisdiction  over  the  whole  Church,  which  belongs 
exclusively  to  the  Sovereign  Pontiff  acting  either 
alone  or  in  a  General  Council.  The  power  of  estab- 
lishing impediments  by  way  of  particular  law  may 
be  within  the  limits  of  episcopal  authority,  as  many 
admit;  and  Bishops  seem  to  have  exercised  it  in  the 
past,  but  because  of  the  necessity  of  preserving  uni- 
formity in  this  matter,  it  had  long  been  reserved  to 
the  supreme  authority,  if  not  by  an  explicit  declara- 
tion, at  least  implicitly  and  practically ;  now  it  is  re- 
served explicitly. 

2.°  THE  POWER  OF  ORDINARIES 

Can.  1039.  §  1.  Ordinarii  loco  rum  omnibus  in 
suo  territorio  actu  commorantibus  et  suis  subditis 


78        IMPEDIMENTS  IN  GENERAL 

etiam  extra  fines  sui  territorii  vetare  possunt  matri- 
monia  in  casu  peculiar!,  sed  ad  tempus  tantum,  justa 
de  causa  eaque  perdurante. 

§  2.  Vetito  clausulam  irritantem  una  Sedea 
Apostolica  addere  potest. 

74.  §  1.  Ordinaries  may  forbid  marriages  to 
all  persons  in  their  territory  and  to  their  sub- 
jects also  outside  the  territory,  but  only  in  a 
particular  case,  temporarily,  and  as  long  as  a 
just  cause  lasts. 

§  2.  An  invalidating  clause  can  not  be  added 
to  that  prohibition  except  by  the  Apostolic  See. 

75.  It  was  considered  as  certain  that  a  Bishop 
could  not,  even  by  way  of  particular  precept,  forbid 
a  marriage  under  pain  of  nullity ;  and  commonly  held 
that  he  could  forbid  it  under  pain  of  sin.     The  law 
is  now  clear.     That  power  the  Bishops  can  exercise 
over  their  subjects,  in  or  outside  of  the  diocese;  and 
also  over  strangers  who  are  within  the  limits  of  their 
territory.     Locus  regit  actum.     As  just  causes  for 
such  prohibition  canonists  mention  the  danger  of 
scandal,  the  fear  of  grave  enmities,  the  probable  ex- 
istence of  a  hidden  impediment,  etc. 

If  a  Bishop  should  forbid  the  celebration  of  mar- 
riages during  the  closed  time,  or  after  a  certain  hour 
in  the  evening,  etc.,  he  would  not  be  establishing  pro- 
hibitive impediments,  but  regulating  what  pertains 
to  external  discipline  and  worship. 


POWER  OF  DISPENSING  79 

IV.    POWER  OF  ABROGATING,  DEROGAT- 
ING, OR  DISPENSING  FROM, 
IMPEDIMENTS 

Can.  1040.  Praeter  Romanum  Pontiftcem,  nemo 
potest  impedimenta  juris  ecclesiastic!  sive  impedi- 
entia  sive  dirimentia  abrogate,  aut  illis  derogate; 
item  nee  in  eisdem  dispensare,  nisi  jure  communi  vel 
speciali  indulto  a  Sede  Apostolica  haec  potestas  con- 
cessa  fuerit. 

76.  No  one  except  the  Roman  Pontiff  has 
power  to  abolish  entirely  or  partially  ecclesi- 
astical impediments  whether  prohibitive  or  diri- 
ment; neither  has  any  one  power  to  dispense 
from  them  unless  it  has  been  granted  him  by 
common  law  or  by  special  Apostolic  Indult. 

The  impediments  of  divine  origin  can  not  be  abro- 
gated or  dispensed  from  by  any  human  authority, 
but  only  interpreted.  Canon  Law  deals  here  solely 
with  ecclesiastical  impediments. 

1.  Abrogation  and  derogation.  To  suppress  com- 
pletely or  partially  an  impediment  requires  the  same 
power  as  to  constitute  it.  That  power  is  possessed 
by,  or  reserved  to,  the  Roman  Pontiff  alone.  He  ex- 
ercises it  from  time  to  time,  but  as  a  rule  does  not 
delegate  it. 

77.  2.  Dispensations.    To  dispense  is  to  distribute 
or  to  administer.     As  in  the  administration  or  appli- 
cation of  law  it  was  found  necessary  to  make  some 
exceptions,  to  these  exemptions  granted  to  individual 


80        IMPEDIMENTS  IN  GENERAL 

persons,  for  special  reasons,  by  a  prudent  administra- 
trator,  the  name  dispensation  came  to  be  applied. 
Again,  when  a  law  is  violated,  the  common  good  may 
demand  that  obedience  to  it  be  insisted  on,  or  that 
reparation  be  exacted,  or,  sometimes,  that  what  has 
been  done  unlawfully  be  sanctioned  and  thus  rendered 
legitimate.  In  this  last  case  we  have  what  has  been 
called  a  dispensation  post  factum. 

A.   Former  Discipline 

78.  (a)  For  a  long  time  the  dispensations  granted 
by  ecclesiastical  authority  were  mostly  post  factum, 
although  there  are  found,  at  a  very  early  date,  ex- 
amples of  dispensations  regarding  the  future,  ad  faci- 
endum; as,  for  instance,  the  permission  granted  by 
St.  Gregory  the  Great  to  the  newly  converted  Anglo- 
Saxons  to  marry  within  the  forbidden  degrees  of  con- 
sanguinity, beyond  the  fourth.  There  was  no  doubt 
about  the  power  of  dispensing,  but  it  was  preferred 
not  to  use  it,  and  to  enforce  the  law  when  it  was 
possible. 

(6)  As  long  as  dispensations  were  little  more  than 
acts  of  a  prudent  administration  demanded  by  cir- 
cumstances, they  were  freely  granted  by  all  whose 
mission  it  was  to  apply  the  law,  that  is,  chiefly  the 
Bishops.  When  gradually  they  had  assumed  a  more 
and  more  legislative  character  and  had  grown  more 
numerous,  it  became  more  clearly  recognized  that 
they  presupposed  in  their  author  a  corresponding 
legislative  power,  that  an  inferior  could  not  dispense 
from  the  laws  of  a  superior.  By  the  end  of  the 


POWER  OF  DISPENSING  81 

eleventh  or  the  beginning  of  the  twelfth  century  it 
was  clearly  defined  that  the  Sovereign  Pontiff  and  he 
alone  could  dispense  from  all  impediments  of  the 
ecclesiastical  law;  the  Bishops,  of  their  own  author- 
ity, could  dispense  only  from  those  set  up  by  par- 
ticular law. 

In  practice,  however,  the  application  of  this  prin- 
ciple offered  difficulties.  The  faithful  continued  to 
have  recourse  to  their  Ordinaries,  and  it  was  not  pos- 
sible to  refer  to  Rome  all  the  cases,  particularly  those 
of  frequent  occurrence  and  secondary  importance  or 
those  calling  for  immediate  settlement.  The  powers 
of  Bishops  had  to  be  extended.  Some  canonists 
maintained  that  they  would  retain  the  dispensing 
power  they  had  formerly  exercised  unless  explicitly 
forbidden.  This,  however,  was  not  commonly  ad- 
mitted. At  the  end  of  the  fifteenth  century  it  was 
generally  taught  that  Bishops  had  power  to  dispense 
from  impediments  established  by  common  law  when 
there  was  a  custom  to  that  effect,  in  cases  of  necessity 
or  great  utility,  when  that  power  was  granted  by  law 
explicitly  or  even  implicitly,  as  when  the  text  of  the 
law  mentioned  dispensation  as  possible  without  stat- 
ing from  whom  it  should  be  obtained,  and  finally  in 
doubtful  cases.  This  had  remained  the  common 
teaching  to  the  present  day.  (Ferraris,  Prompta 
Bibliotheca,  Dispensatio.) 

Some  authors  held  also  that  pastors  and  confessors 
possessed  by  virtue  of  custom  some  power  of  dispens- 
ing, but  others  denied  it  as  not  proved.  (Diction- 
naire  de  Theologie  Catholique,  Dispenses;  Thomas- 
sin,  Ancienne  et  nouvelle  discipline  de  1'Eglise,  p.  ii, 


82        IMPEDIMENTS  IN  GENERAL 

1.  iii,  c.  xxiv-xxviii;  Conferences  ecclesiastiques  de 
Paris,  t.  iii,  p.  322 ;  Esmein,  vol.  ii,  p.  315.) 

B.   Present  Discipline 

79.  In  the  present  law  it  is  clearly  laid  down  that 
the  Pope,  and  he  alone,  can  dispense,  of  his  own  au- 
thority, from  impediments  of  the  ecclesiastical  law. 
To  others  the  Holy  See  can  grant  that  power  either 
by  general  law,  in  which  case  it  is  considered  as  or- 
dinary power;  or  by  special  indult,  in  which  case  it 
is  delegated  power.     Subsequent  canons  define  the 
general  conditions  for  dispensations,  the  dispensing 
power  granted  to  Bishops  and  simple  priests,  and  the 
manner  of  dispensing. 

V.   CUSTOM  AND  IMPEDIMENTS 

Can.  1041.  Consuetude  novum  impedimentum 
inducens  aut  impedimentis  exsistentibus  contraria 
rcprobatur. 

80.  Customs  tending  to  introduce  a  new  im- 
pediment or  to  abrogate  those  in  existence  are 
condemned. 

1.  Custom  may  introduce  or  abrogate  ecclesiasti- 
cal laws,  provided  it  has  the  implicit  or  legal  ap- 
proval of  the  legislator.  In  times  past  it  did  establish 
and  abrogate  impediments  both  prohibiting  and  diri- 
ment. (Wernz,  n.  60;  Gasparri,  nn.  273,  304.)  In 
modern  times  it  has  introduced  no  new  impediment 
strictly  so  called ;  the  tendency  is  rather  to  disregard 
those  already  existing. 


CUSTOM  AND  IMPEDIMENTS       83 

2.  Has  it  abrogated  any?  The  prohibiting  im- 
pediments which  remain  for  the  whole  Church  could 
not  be  abrogated  by  custom,  because  of  their  close 
connection  with  the  divine  law.  (Gasparri,  n.  305.) 
For  the  impediment  of  mixed  religion,  in  particular, 
it  has  been  repeatedly  declared  that  any  custom 
against  it  was  corruptela  juris,  and  to  be  condemned. 

Customs  against  purely  ecclesiastical  diriment  im- 
pediments might  more  readily  have  had  the  consent 
of  the  legislator,  but  here  again  if  the  custom  was 
universal  it  would  be  known  and  either  approved  or 
rejected;  if  it  was  a  particular  one,  the  importance 
attached  to  uniformity  in  marriage  legislation  would 
render  the  consent  less  probable,  at  least  for  or- 
dinary customs  of  twenty  or  forty  years.  Moreover, 
the  Church  has  for  some  impediments  manifested 
unwillingness  to  approve  their  abrogation  by  custom, 
and  she  refuses  likewise  to  sanction,  even  implicitly, 
disregard  for  her  laws  by  heretics,  and  customs 
thereby  established. 

A  decree  of  the  Holy  Office  of  March  11,  1868, 
admitted  that  the  impediment  of  clandestinity  had 
been  abrogated  in  Japan  by  a  prolonged  contrary  cus- 
tom, but  it  did  not  admit  that  the  same  custom  had 
abrogated  other  impediments,  like  consanguinity  and 
affinity.  (Gasparri,  n.  308;  Wernz,  n.  60.)  The 
same  Congregation  declared,  July  6,  1892  (A.  S.  S., 
vol.  xxv,  p.  118),  that  no  lapse  of  time  is  sufficient 
to  abrogate  the  law  of  Trent  because  of  non-observ- 
ance by  heretics.  Hence,  there  remains  no  foun- 
dation for  the  opinion  of  some  old  canonists  (Schmalz- 
gruber,  Jus  Canonicum  Universum,  1.  iv,  t.  4,  n.  99) 


84        IMPEDIMENTS  IN  GENERAL 

that  in  Protestant  countries  like  England  and  Ger- 
many baptized  heretics  were  not  bound  any  more  by 
the  diriment  impediments  which  they  had  not  ob- 
served for  a  long  period  of  time.  Among  English 
Protestants,  the  impediments  of  consanguinity  and 
affinity  have  been  considered  for  several  centuries  as 
extending  only  to  the  second  degree.  Still,  in  the 
case  of  converts  who  had  contracted  marriage  with 
such  impediments  in  the  third  or  fourth  degrees,  the 
Roman  Congregations  declare  the  marriage  null. 

81.  3.  In  future,  there  will  be  no  more  doubt.  No 
custom,  even  if  it  should  date  from  time  immemorial, 
can  be  considered  as  in  any  sense  approved  by  the 
legislator,  and  therefore  has  no  value  for  introducing 
new  impediments  or  abrogating  those  in  existence. 
All  the  impediments  sanctioned  by  the  present  legis- 
lation will  henceforth  be  in  force  everywhere,  and 
those  alone,  whatever  may  be  the  customs  to  the  con- 
trary. Exceptions  to  and  changes  in  this  matrimo- 
nial legislation  will  require  a  positive  intervention  of 
the  supreme  authority.  Cases  are  now  constantly 
referred  to  Rome  from  all  parts  of  the  Church ;  there 
is  little  room  for  custom,  general  or  particular. 

VI.  CLASSIFICATION  OF  IMPEDIMENTS 

Can.  1042.  §  1.  Impedimenta  alia  sunt  gradus 
minoris,  alia  major  is. 

§  2.    Impedimenta  gradus  minoris  sunt: 

1.°  Consanguinitas  in  tertio  gradu  lineae  col- 
lateralis ; 

2.°     Affinitas  in  secundo  gradu  lineae  collateralis ; 

3.°     Publica  honestas  in  secundo  gradu; 


CLASSIFICATION  OF  IMPEDIMENTS  85 

4.°     Cognatio  spiritualis ; 

5.°  Crimen  ex  adulterio  cum  promissione  vel 
attentatione  matrimonii  etiam  per  civilem  tantum 
actum. 

§  3.  Impedimenta  majoris  gradus  alia  sunt 
omnia. 

82.  §  2.  Impediments  are  divided  into  major 
and  minor. 

§  2.  The  minor  impediments  are: 

1.°  Consanguinity  in  the  third  degree  of  the 
collateral  line ; 

2.°  Affinity  in  the  second  degree  of  the  col- 
lateral line ; 

3.°  Public  decency  in  the  second  degree; 

4.°  Spiritual  relationship; 

5.°  The  impediment  of  crime  arising  from 
adultery  with  a  promise  of,  or  an  attempt  at, 
marriage,  even  by  a  merely  civil  contract. 

§  3.  The  major  impediments  are  all  the 
others. 

The  diriment  impediments  which,  are  called  minor 
annul  marriage  as  well  as  those  which  are  called 
major;  the  difference  between  them  is  seen  particu- 
larly in  relation  to  dispensations.  Dispensations 
from  minor  impediments  may  be  granted  by  the  Un- 
dersecretary of  the  Congregation  of  Sacraments; 
dispensations  from  major  impediments  are  granted 
only  by  the  Prefect  or  the  Secretary.  Error  in  the 
petition  does  not  vitiate  a  dispensation  from  a  minor 
impediment;  it  may  render  invalid  a  dispensation 
from  a  major  one.  (Normae  Peculiares,  c.  vii,  art. 
3,  nn.  19,  20,  21 ;  A.  A.  S. ;  vol.  i,  pp.  91-92.) 


86        IMPEDIMENTS  IN  GENERAL 

VII.    POWERS  OF  DISPENSING  GRANTED 

BY  COMMON  LAW  TO  ORDINARIES 

AND  PRIESTS 

83.  Being  granted  by  law,  those  powers  are  con- 
sidered as  ordinary  or  quasi-ordinary.  They  are  sub- 
stantially the  same  as  those  which  Ordinaries  enjoyed 
before,  by  custom,  the  tacit  consent  of  the  Holy  See, 
or  special  decrees,  with,  however,  some  notable  dif- 
ferences. 

1.°  IN  CASES  OF  DANGER  OF  DEATH 

A.  Powers  Granted  to  Ordinaries 

Can.  1043.  Urgente  mortis  periculo,  locorum 
Ordinarii,  ad  consulendum  conscientiae  et,  si  casus 
ferat,  legitimation!  prolis,  possunt  turn  super  forma 
in  matrimonii  celebratione  servanda,  turn  super  om- 
nibus et  singulis  imp edi mentis  juris  ecclesiastic!, 
sive  publicis  sive  occultis,  etiam  multiplicibus,  ex- 
ceptis  impedimentis  provenientibus  ex  sacro  pres- 
byteratus  ordine  et  ex  amnitate  in  linea  recta, 
consummate  matrimonio,  dispensare  proprios  sub- 
ditos  ubique  commorantes  et  omnes  in  proprio  teni- 
torio  actu  degentes,  remoto  scandalo,  et,  si  dispen- 
satio  concedatur  super  cultus  disparitate  aut  mixta 
religione,  praestitis  consuetis  cautionibus. 

In  danger  of  death,  Ordinaries  may,  for  the 
relief  of  conscience  and,  if  the  case  demands  it, 
for  the  legitimation  of  children,  grant  dispensa- 
tion, both  from  the  form  of  marriage,  and  from 
each  and  all  of  the  ecclesiastical  impediments, 
whether  public  or  occult,  even  if  there  are  sev- 


POWERS  OF  DISPENSING  87 

eral,  excepting  the  impediment  of  priestly  Or- 
ders and  affinity  in  the  direct  line  arising  from 
consummated  marriage,  to  their  subjects, 
wherever  they  may  be,  and  to  all  persons  ac- 
tually in  their  territory,  care  being  taken  to 
avoid  scandal,  and  if  dispensation  is  granted 
from  the  impediment  of  disparity  of  cult  or 
mixed  religion,  the  usual  guarantees  being 
exacted. 

84.  A  decree  of  February  20,  1888,  completed  by 
one  of  December  13,  1899,  had  given  extensive 
powers  to  Ordinaries  in  case  of  danger  or  death.  The 
present  canon  renews  and  in  several  respects  extends 
them. 

1.  The  first  condition  for  the  exercise  of  those 
powers  is  that  there  be  danger  of  death,  not  very 
grave,  as  the  decree  of  1888  had  it,  but  really  grave; 
it  suffices  that  one  of  the  parties  be  in  danger,  nor  is 
it  necessary  that  it  should  be  the  one  who  is  directly 
affected  by  the  impediment.    (Holy  Office,  July  1, 
1891.)    The  decree  of  1888  spoke  of  danger  of  death 
from  sickness ;  here  no  special  cause  is  specified. 

2.  According  to  the  decree  of  1888  those  faculties 
were  to  be  used  in  favor  of  parties  who  lived  in  con- 
cubinage or  were  married  only  civilly.     A  decree  of 
1909  (A.  A.  S.,  vol.  i,  p.  468)  demanded  only  that 
the  marriage  should  be  necessary,  in  general,  for  the 
relief  of  conscience,  and,  if  the  case  demanded,  for 
the  legitimation  of  children.    These  are  also  the  con- 
ditions laid  down  by  this  canon.    Either  of  them  was 
considered  as  sufficient.     (De  Smet,  nn.  358,  369 ; 
Nouvelle  Revue  Theologique,  Aout,  1909,  p.  467 ; 


88        IMPEDIMENTS  IN  GENERAL 

De  Becker,  De  Sponsalibus  et  Matrimonio,  Supple- 
ment, p.  49.) 

3.  When  those  conditions  are  fulfilled,  the  Or- 
dinary can  dispense  from  all  impediments  of  the 
ecclesiastical  law — excepting  only  two — even  if  they 
are  public,  even  if  there  are  several  in  the  same  case ; 
and  this  is  to  be  understood,  no  doubt,  of  several  of 
the  same  or  of  different  kinds.    The  prohibiting  im- 
pediments are  not  excluded,  as  they  were  in  previous 
decrees,  and  the  power  of  dispensing  from  the  form 
of  marriage  is  expressly  included. 

4.  Those  powers  the  Ordinary  can  use  in  favor  of 
his  subjects,  wherever  they  are,  and  in  favor  of  all 
persons  actually  in  his  diocese  or  territory. 

5.  It  is  asked  that  proper  care  be  taken  to  avoid 
the  scandal  that  might  arise  from  the  incautious  use 
of  those  extraordinary  faculties.    When  dispensation 
is  granted  from  the  impediment  of  disparity  of  cult 
or  mixed  religion  the  usual  promises  have  to  be  ex- 
acted even  at  the  point  of  death. 

B.   Powers  Granted  to  Priests 

Can.  1044.  In  eisdem  rerum  adjunctis  de  quibus 
in  can.  1043  et  solum  pro  casibus  in  quibus  ne  loci 
quidem  Ordinarius  adiri  possit,  eadem  dispensandi 
facultate  pollet  turn  parochus,  turn  sacerdos  qui 
matrimonio,  ad  normam  can.  1098,  n.  2,  assist! t,  turn 
conf essarius,  sed  hie  pro  foro  interne  in  actu  sacra- 
mentalis  confessionis  tantum. 

85.  Under  the  circumstances  described  in 
can.  1043,  but  only  in  those  cases  in  which  even 


POWERS  OF  DISPENSING          89 

the  Ordinary  of  the  place  could  not  be  reached, 
the  same  power  of  dispensing  is  enjoyed  by  the 
pastor  and  by  the  priest  who  assists  at  a  mar- 
riage in  accordance  with  the  provision  of  can. 
1098,  n.  2,  and  by  the  confessor;  but  this  last 
one  in  the  internal  forum  only  and  in  the  act  of 
sacramental  confession. 

1.  When  the  Ordinary  can  not  be  reached  in  time, 
the  faculties  granted  to  him  in  the  preceding  canon 
are  granted  here,  in  the  same  circumstances  and  on 
the  same  conditions,  to  the  pastor  of  the  parties,  and 
to  the  priest  who,  without  being  the  pastor  or  the 
Ordinary  or  delegated  by  either  of  them,  can  validly 
assist  at  the  marriage  of  the  parties,  in  cases  of 
danger  of  death.     The  confessor  is  given  the  same 
power,  but  he  can  use  it  only  in  the  tribunal  of  pen- 
ance and  exclusively  for  the  internal,  penitential 
forum. 

2.  An  assistant  pastor  or  a  priest  who  assists  at 
a  marriage  as  a  delegate  of  the  pastor  or  Ordinary 
does  not  possess  those  faculties,  but  they  may  be  sub- 
delegated  to  him,  since  they  are  quasi-ordinary.     If 
the  curate  of  the  parish  would  assist  at  a  marriage 
under  circumstances  under  which  any  priest  would 
assist  validly,  he,  no  doubt,  would  enjoy  the  same 
privileges  as  the  priest  who  is  a  stranger. 

3.  Since  the  faculties  of  can.  1044  are  the  same 
as  those  of  can.  1043,  it  may  be  inferred  that,  like 
the  Ordinary,  the  pastor  can  exercise  them  in  favor 
of  his  subjects  wherever  they  are  and  in  favor  of  all 
persons  actually  in  his  territory.   (De  Smet,  n.  370.) 


90        IMPEDIMENTS  IN  GENERAL 

Can.  1046.  Parochus  aut  sacerdos  de  quo  in  can. 
1044,  de  concessa  dispensatione  pro  foro  externo 
Ordinarium  loci  statim  certiorem  faciat;  eaque  ad- 
notetur  in  libro  matrimoniorum. 

86.  The  pastor  or  the  priest  mentioned  in 
can.  1044  shall  inform  the  Ordinary,  at  once,  of 
the  dispensation  he  has  given  in  the  external 
forum ;  and  he  shall  enter  it  in  the  book  of  mar- 
riages. 

For  the  sake  of  order,  to  prevent  possible  abuses 
of  those  extraordinary  powers  and  to  have  legal  proof 
of  the  validity  of  marriages,  it  is  prescribed  that  the 
Ordinary  be  informed,  without  delay,  of  all  the  dis- 
pensations thus  granted  for  the  forum  extemum,  and 
that  a  record  be  kept  of  them  in  the  marriage  register. 

2.°  IN  CASES  OF  URGENT  NECESSITY 

Can.  1045.  §  1.  Possunt  Ordinarii  locorum, 
sub  clausulis  in  fine  can.  1043  statutis,  dispensa- 
tionem  concedere  super  omnibus  impedimentis  de 
quibus  in  cit.  can.  1043,  quoties  impedimentum  de- 
tegatur,  cum  jam  omnia  sunt  parata  ad  nuptias,  nee 
matrimonium,  sine  probabili  gravis  mali  periculo, 
differri  possit  usque  dum  a  Sancta  Sede  dispensatio 
obtineatur. 

§  2.  Haec  facultas  valeat  quoque  pro  convalida- 
tione  matrimonii  jam  contract!,  si  idem  periculum 
sit  in  mora  nee  tempus  suppetat  recurrendi  ad  Sanc- 
tam  Sedem. 

§  3.  In  iisdem  rerum  adjunctis,  eadem  facilitate 
gaudeant  omnes  de  quibus  in  can.  1044,  sed  solum 
pro  casibus  occultis  in  quibus  ne  loci  quidem  Ordin- 


POWERS  OF  DISPENSING          91 

anus  adiri  possit,  vel  nonnisi  cum  periculo  viola- 
tionis  secret!. 

87.  §  1.  Ordinaries  can,  under  the  conditions 
laid  down  at  the  end  of  can.  1043,  dispense 
from  all  the  impediments  mentioned  in  the  same 
canon,  every  time  the  impediment  is  discovered 
when  everything  is  ready  for  the  wedding,  and 
the  marriage  can  not,  without  probable  danger 
of  grave  inconvenience,  be  delayed  until  a  dis- 
pensation could  be  obtained  from  the  Holy  See. 

§  2.  The  same  faculties  hold  good  for  the  re- 
validation  of  a  marriage  already  contracted,  if 
there  is  the  same  danger  in  delay  and  there  is 
no  time  to  have  recourse  to  the  Holy  See. 

§  3.  In  the  same  circumstances,  the  same 
faculties  are  enjoyed  by  all  those  mentioned 
in  can.  1044,  but  only  for  the  occult  cases  in 
which  it  would  not  be  possible  to  have  recourse 
even  to  the  Ordinary  of  the  place,  or  it  could 
not  be  done  without  danger  of  violating  the 
secret. 

88.  1.  The  urgent  necessity  for  which  these  fac- 
ulties are  granted  is  the  one  described  here,  which 
canonists  have  called  the  casus  perplexus — when  all 
is  ready  for  the  ceremony,  an  impediment  is  discov- 
ered, and  the  marriage  can  not  be  put  off  long  enough 
to  have  recourse  to  the  Holy  See. 

The  inconvenience  from  the  delay  ought  to  be  a 
grave  one,  but  it  suffices  that  there  be  a  probable 
danger  of  such  an  inconvenience.  Under  those 


92        IMPEDIMENTS  IN  GENERAL 

circumstances  the  Ordinary  has  the  power  again 
to  dispense  from  all  impediments  of  the  ecclesi- 
astical law,  except  two,  as  in  cases  of  danger 
of  death. 

2.  Ordinaries  have  the  same  faculties  for  the  revali- 
dation  of  a  marriage  already  contracted,  if  the  same 
condition  of  necessity  is  present ;  only  here  the  neces- 
sity arises  in  a  different  manner  and  may  result  from 
different  causes.    Thus  there  may  be  a  serious  danger 
of  scandal,  disgrace,  or  other  grave  inconvenience 
if  the  parties  were  separated,  and  on  the  other  hand 
there  may  be  an  equally  grave  danger  of  incontinence 
if  they  were  asked  to  live  together  as  brother  and 
sister  during  the  time  required  for  recourse  to  Rome. 
By  marriage  contracted  is  meant  here  one  which  has 
the  "appearance  of  marriage,"  that  is,  which  has  been 
contracted  invalidly,  but  with  the  required  formali- 
ties.    Regularly  the  Church  does  not  recognize  the 
"appearance  of  marriage"  in  a  merely  civil  union, 
still  less  in  concubinage.    (De  Smet  n.  359 ;  Putzer, 
Commentarium   in  Facultates   Apostolicas,   n.    16; 
Wernz,  n.  29.) 

3.  The  faculties  granted  to  pastors,  confessors,  or 
priests  for  performing  a  marriage  in  case  of  neces- 
sity are  limited  to  occult  cases,  and  even  for  those 
recourse  should  be  had  to  the  Ordinary,  if  time  per- 
mits— and  if  it  can  be  done  without  revealing  the 
impediment  or   violating   any   secret.      Even   with 
those  restrictions,  these  faculties  will  facilitate  the 
solution  of  very  embarrassing  cases  for  which  there 
was  no  provision  in  the  former  legislation.     They 
can  be  used  also,  under  the  proper  conditions,  for 


POWERS  OF  DISPENSING  93 

the  revalidation  of  marriages  already  contracted.1 
89.  Doubtful  impediments.  No  special  faculties 
are  granted  to  dispense  from  them,  for  it  is  a  general 
principle  (can.  14)  that  when  there  is  a  doubt  of 
right  the  law  is  not  binding,  if  there  is  a  doubt  of 
fact  the  Ordinary  can  dispense  in  those  matters  in 
which  the  Holy  See  usually  dispenses. 


1More  extensive  faculties  had  been  obtained  by  Ordinaries 
in  various  countries;  a  decree  of  the  Consistorial  Congrega- 
tion of  April  25,  1918,  withdraws  most  of  them  and  grants, 
instead,  the  following  ones: 

(a)  The  Ordinaries  of  America,  the  Philippine  Islands, 
East  Indies,  Central  and  South  Africa  may,  for  five  years, 
beginning  May  18  of  the  current  year,  dispense  from  the 
minor  impediments  enumerated  in  can.  1042 ;  all  rules  about 
dispensations  laid  down  in  that  chapter  of  the  Code  being 
observed. 

They  may  likewise  revalidate  in  radice  marriages  null  on 
account  of  minor  impediments;  taking  care  that  the  prescrip- 
tions contained  in  the  Code,  bk.  Ill,  Tit.  vii,  c.  xi,  be  com- 
plied with,  and  that  the  party  conscious  of  the  impediment 
be  informed  of  the  effect  of  the  dispensation. 

(&)  The  same  Ordinaries  may  also  dispense,  for  five  years, 
from  major  impediments,  whether  public  or  occult,  even  if 
there  are  several  of  them,  provided  they  be  of  ecclesiastical 
institution  (excepting  those  which  arise  from  priestly  Or- 
ders or  from  affinity  in  the  direct  line  produced  by  the  con- 
summation of  marriage),  and  from  the  prohibiting  impedi- 
ment of  mixed  religion;  when,  the  petition  for  a  dispensa- 
tion having  been  sent  to  the  Holy  See,  the  case  becomes 
urgent  before  the  answer  is  received. 

In  granting  these  dispensations,  Ordinaries  must  always  bear 
in  mind  the  ordinances  of  the  Code,  bk.  Ill,  tit.  vii,  c.  2,  3,  4, 
regarding  impediments  in  general  and  in  particular;  without 
forgetting  the  clauses  usually  added  to  permissions  for  mar- 
riages with  Mohammedans  or  Hebrews. 

(c)  The  Ordinaries  of  France,  Great  Britain,  Germany, 
Austria,  and  Poland  enjoy  the  same  faculties  (a  and  &),  for 
the  duration  of  the  war,  whenever  it  is  foreseen  that  re- 
course to  the  Holy  See  will  be  difficult  or  impossible  at 
least  for  a  month.  (A.  A.  Sedis,  May  1,  1918;  II  Monitore 
Ecclesiastico,  15  Maggio,  p.  140;  Le  Canoniste  Contempo- 
rain,  Mai-Juin,  1918,  p.  239.) 


94        IMPEDIMENTS  IN  GENERAL 

VIII.   DISPENSATIONS  FOR  THE  IN- 
TERNAL FORUM 

Can.  1047.  Nisi  aliud  ferat  S.  Poenitentiariae 
rescriptum,  dispensatio  in  foro  interne  non  sacra- 
mentali  concessa  super  impedimento  occulto,  ad- 
notetur  in  libro  diligenter  in  secrete  Curiae  archive 
de  quo  in  can.  379  asservando,  nee  alia  dispensatio 
pro  foro  externo  est  necessaria,  etsi  postea  occultum 
impedimentum  publicum  evaserit;  sed  est  neces- 
saria, si  dispensatio  concessa  fuerat  tantum  in  foro 
interne  sacramentali. 

90.  Unless  the  rescript  of  the  Sacred  Peni- 
tentiary ordains  otherwise,  dispensations  from 
occult  impediments  for  the  internal,  non-sacra- 
mental forum  are  to  be  recorded  in  a  book  kept 
in  the  secret  archives  of  the  diocese,  of  which 
can.  379  speaks,  and  no  other  dispensation  is 
needed  for  the  external  forum  although  the 
impediment  becomes  afterwards  public ;  but  one 
is  needed  if  the  dispensation  has  been  granted 
only  for  the  internal  sacramental  forum. 

1.  A  dispensation  granted  for  the  internal  forum 
only  does  not  remove  the  impediment  in  the  eyes  of 
the  public  or  of  the  external  government  of  the 
Church;  therefore  it  is  good  only  for  occult  impedi- 
ments. If  the  impediment  which  was  occult  becomes 
public,  regularly  another  dispensation  for  the  exter- 
nal forum  would  be  necessary.  But  the  present  law, 
to  simplify  matters,  now  ordains  that  when  such  a 
dispensation  is  granted  for  the  internal  forum,  pro- 
vided it  be  not  in  connection  with  sacramental  con- 


INTERVENTION  OF  HOLT  SEE      95 

fession,  a  record  of  it  be  kept,  so  that  it  can  serve  for 
the  external  forum  also  in  case  the  impediment  be- 
comes public. 

2.  That  dispensation  is  to  remain  secret  as  long 
as  the  impediment  remains  occult,  and  for  that  reason 
the  record  is  to  be  preserved  in  a  special  book,  which 
is  to  be  kept,  not  in  the  parochial  but  in  the  diocesan 
secret  archives.  In  some  cases,  for  special  reasons, 
the  Sacred  Penitentiary,  which  grants  the  faculties 
for  the  dispensation,  may  direct  that  no  record  of 
it  be  kept.  None  is  ever  kept  when  the  dispensation 
is  granted  in  connection  with  the  administration  of 
the  sacrament  of  Penance.  In  this  last  case,  should 
the  impediment  become  public  afterward,  a  new  dis- 
pensation would  be  required. 

IX.   INTERVENTION  OF  THE  HOLY  SEE 

Can.  1048.  Si  petitio  dispensationis  ad  Sanctam 
Sedem  missa  sit,  Ordinarii  locorum  suis  f acultatibus, 
si  quas  habeant,  ne  utantur,  nisi  ad  normam  can. 
204,  §  2. 

91.  If  application  for  a  dispensation  has  been 
made  to  the  Holy  See,  Ordinaries  should  not  use 
the  powers  they  might  have,  except  in  accord- 
ance with  the  prescriptions  of  can.  204,  §  2. 

It  is  a  general  principle  that,  through  seizure  by 
the  superior,  the  inferior  loses  the  power  he  might 
have  in  the  case,  unless  there  would  be  a  grave  and 
urgent  cause  for  him  to  act. 


96        IMPEDIMENTS  IN  GENERAL 

X.    DISPENSATION  FROM  SEVERAL  IM- 
PEDIMENTS IN  THE  SAME  CASE 

Can.  1049.  §  1.  In  matrimoniis  sive  contractis 
sive  contrahendis,  qui  gaudet  indulto  general!  dis- 
pensandi  super  certo  quodam  impediment©,  potest, 
nisi  in  ipso  indulto  aliud  expresse  praescribatur, 
super  eo  dispensare  etiamsi  idem  impedimentum 
multiplex  sit. 

§  2.  Qui  habet  indultum  generale  dispensandi 
super  pluribus  diversae  speciei  impedimentis,  sive 
dirimentibus  sive  impedientibus,  potest  dispensare 
super  iisdem  impedimentis,  etiam  publicis,  in  uno 
eodemque  casu  occurrentibus. 

92.  §  1.  Whether  it  is  question  of  marriages 
already  contracted  or  of  marriages  to  be  con- 
tracted, he  who  has  a  general  indult  to  dispense 
from  a  certain  impediment  can  dispense  from 
it  also  when  it  is  multiplex,  unless  there  be 
something  expressly  to  the  contrary  in  the 
indult. 

§  2.  He  who  has  a  general  indult  to  dispense 
from  several  impediments  of  a  different  kind, 
either  diriment  or  prohibitive,  can  dispense 
simultaneously  from  them  all  when  they  occur 
in  the  same  case,  even  if  they  are  public. 

1.  Under  the  former  discipline  one  who  dispensed 
in  virtue  of  ordinary  powers  could  dispense  simul- 
taneously from  several  impediments  as  well  as  sep- 
arately. But  if  he  acted  in  virtue  of  an  indult, 
unless  he  had  received  special  faculties,  which  were 
called  faculties  for  cumulating,  he  could  not  dispense 


DISPENSATION  RESERVED         97 

the  same  person  from  several  impediments  simultane- 
ously, at  least  if  they  were  of  a  different  kind,  even 
though  he  had  powers  to  dispense  from  every  one  of 
them  in  particular.  Thus  an  Ordinary  having  fac- 
ulties to  dispense  from  impediments  of  consanguinity 
and  of  mixed  religion  could  not  use  his  faculties 
when  the  two  impediments  occurred  in  the  same  case, 
unless  he  had  the  indultum  cumulandi. 

2.  The  rule  laid  down  here  is  that  whether  there 
are  in  the  same  case  several  impediments  of  the  same 
or  of  different  kinds,  as,  for  example,  an  impediment 
of  consanguinity  which  is  multiplied  or  an  impedi- 
ment of  affinity  and  one  of  mixed  religion,  whether 
the  impediments  are  diriment  or  prohibitive,  public 
or  occult,  he  who  has  a  general  indult  to  dispense 
from  every  one  of  them  separately  can  dispense  also 
simultaneously  from  all  of  them.  This,  however, 
would  not  apply  if  one  would  dispense  by  virtue  of 
faculties  granted  only  for  a  particular  case,  nor  if  in 
the  general  indult  it  was  explicitly  stated  that  the 
various  faculties  can  be  used  only  for  each  impedi- 
ment separately. 

XI.    DISPENSATION  WHEN  ONE  OF  THE 

IMPEDIMENTS  IS  KESEKVED  TO 

THE  HOLY  SEE 

Can.  1050.  Si  quando  cum  impedimenta  seu  im- 
pedimentis  publicis  super  quibus  ex  indulto  dispen- 
sare  quis  potest,  concurrat  aliud  impedimentum 
super  quo  dispensare  nequeat,  pro  omnibus  Sedes 
Apostolica  adiri  debet ;  si  tamen  impedimentum  seu 


98        IMPEDIMENTS  IN  GENERAL 

impedimenta  super  quibus  dispensare  potest,  com- 
periantur  post  impetratam  a  Sancta  Sede  dispensa- 
tionem,  suis  facultatibus  uti  poterit. 

93.  If,  together  with  one  or  several  public 
impediments  from  which  one  can  dispense  in 
virtue  of  an  indult,  there  occurs  another  from 
which  he  can  not  dispense,  recourse  must  be 
had  to  the  Holy  See  for  all  of  them.  If,  how- 
ever, the  impediment  or  impediments  from 
which  he  can  dispense  are  discovered  by  the 
Ordinary  after  petitioning  the  Holy  See  for  the 
dispensation,  he  will  be  allowed  to  use  his 
faculties. 

The  meaning  of  this  rule  and  the  reason  for  it  are 
sufficiently  clear.  It  will  be  noticed  that  it  applies 
only  to  impediments  that  are  public  and  dispensation 
from  which  could  be  granted  by  virtue  of  an 'indult 
If  the  Bishop  can  lispense  by  virtue  of  his  ordinary 
power,  he  may  do  so  even  if  there  be  another  impedi- 
ment in  the  case  from  which  the  Holy  See  alone  can 
dispense.  If  the  impediment  from  which  he  can  dis- 
pense is  not  a  public  one,  he  may  likewise  use  his 
ordinary  or  delegated  powers.  Recourse  to  the  Holy 
See  for  all  is  obligatory  when  together  with  a  public 
impediment,  which  the  Bishop  could  dispense  from 
by  virtue  of  an  indult  there  is  another,  occult  or  pub- 
lic, no  distinction  is  made  here,  which  is  reserved  to 
the  Pope. 

XII.    LEGITIMATION  OF  CHILDREN 
Can.  1051.    Per   dispensationem    super    impedi- 
mento  dirimente  concessam  sive  ex  potestate  ordin- 


LEGITIMATION  OF  CHILDREN      99 

aria,  sive  ex  potestate  delegata  per  indultum  gener- 
ate, non  vero  per  rescriptum  in  casibus  particulari- 
bus,  conceditur  quoque  eo  ipso  legitimatio  prolis,  si 
qua  ex  iis  cum  quibus  dispensatur  jam  nata  vel  con- 
cepta  fuerit,  excepta  tamen  adulterina  et  sacrilega. 

94.  By  a  dispensation  from  a  diriment  im- 
pediment, granted  in  virtue  of  ordinary  power 
or  of  power  delegated  by  general  indu.lt,  not  by 
rescript  given  for  particular  cases,  is  granted 
at  the  same  time  the  legitimation  of  the  off- 
spring if  any  was  conceived  or  born  to  the  dis- 
pensed parties,  provided  it  be  not  adulterine  or 
sacrilegious. 

1.  Illegitimate  children  are  those  born  out  of  real 
or  putative  wedlock.     They  are  called,  in  canon  law, 
natural,  if  at  the  time  of  their  conception  or  birth, 
or  between  these  two  terms,  there  could  have  been  a 
valid  marriage  between  the  parents.    They  are  called 
spurious  if  at  that  time  there  existed  a  diriment 
impediment  to  the  marriage.    If  the  impediment  was 
that  of  a  previous  marriage  they  are  adulterine;  if 
that  of  Sacred  Orders  or  solemn  religious  vow,  they 
are  sacrilegious;  if  consanguinity  or  affinity,  they  are 
incestuous. 

2.  Canon  law,  at  least  since  the  time  of  Alexan- 
der III,  has  accepted  the  principle  of  the  Roman  law, 
that  children  are  legitimated  by  the  subsequent  mar- 
riage of  the  parents.    But  this  applies  only  to  natural 
children,  in  the  sense  defined  above.    For  the  spuri- 
ous a  dispensation  is  required. 

It  has  been  for  a  long  time  an  accepted  rule  that 
a  general  power  of  dispensing  implies  also  power  of 


100      IMPEDIMENTS  IN  GENERAL 

legitimating  the  children,  excepting  such  as  are  adul- 
terine or  sacrilegious.  (S.  Poenit,  July  1,  1859.) 
Rescripts  granted  for  particular  cases  contain  that 
power,  only  when  expressly  mentioned. 

Formerly  the  legitimation  had  to  be  pronounced 
formally.  This  does  not  seem  to  be  required  by  the 
present  law,  since  legitimation  follows  ipso  facto  the 
dispensation. 

XIII.    EKROK  IN  DISPENSATIONS  FROM 
CONSANGUINITY  OR  AFFINITY 

Can.  1052.  Dispensatio  ab  imp  e  dim  en  to  consan- 
guinitatis  vel  affinitatis,  concessa  in  aliquo  impedi- 
ment! gradu,  valet,  licet  in  petitione  vel  in  conces- 
sione  error  circa  gradum  irrepserit,  dummodo  gradus 
revera  exsistens  sit  inferior,  aut  licet  reticitum  fuerit 
aliud  impedimentum  ejusdem  specie!  in  aequali  vel 
inferiore  gradu. 

95.  A  dispensation  from  an  impediment  of 
consanguinity  or  affinity,  granted  for  a  certain 
degree,  is  valid,  even  though  in  the  petition  or 
concession  there  be  an  error  about  the  degree, 
provided  that  the  degree  really  existing  and 
which  should  have  been  mentioned  be  inferior 
to  the  one  which  was  mentioned.  It  is  valid  also 
although  an  impediment  has  been  omitted,  pro- 
vided it  be  of  the  same  species  and  of  an  in- 
ferior or  equal  degree. 

Thus,  if  the  dispensation  was  asked  or  granted  for 
an  impediment  of  consanguinity  in  the  second  degree 
of  the  collateral  line  and  in  reality  it  was  in  the  third, 


IMPLIED  DISPENSATION         101 

<_ 

the  dispensation  is  valid.  It  is  likewise  valid  if  the 
dispensation  was  granted  for  one  impediment  of  con- 
sanguinity in  the  second  degree  of  the  collateral  line 
and  there  were  two,  one  in  the  second,  the  other  in  the 
third,  or  even  in  the  second  degree.  But  the  dis- 
pensation would  not  be  valid  if  it  had  been  granted 
for  an  impediment  of  consanguinity  and  there  was 
also  one  of  affinity  which  was  not  mentioned  in  the 
petition. 

This  canon  is  concerned  only  with  dispensations 
from  the  impediments  of  consanguinity  or  affinity. 

XIV.    IMPLIED  DISPENSATION  FROM  AN 
IMPEDIMENT  OF  CRIME 

Can.  1053.  Data  a  Sancta  Sede  dispensatio  super 
matrimonio  rato  et  non  consummate  vel  facta  per- 
missio  transitus  ad  alias  nuptias  ob  praesumptam 
conjugis  mortem,  secumfert  semper  dispensationem 
ab  impedimento  proveniente  ex  adulterio  cum 
promissione  vel  attentatione  matrimonii,  si  qua  opus 
sit,  minime  vero  dispensationem  ab  impedimento  de 
quo  in  can.  1075,  nn.  2,  3. 

96.  A  dispensation  granted  by  the  Holy  See 
from  marriage  ratified  and  not  consummated, 
or  permission  given  to  contract  a  new  marriage 
because  of  the  presumed  death  of  the  other 
spouse,  always  imply  a  dispensation  from  the 
impediment  arising  from  adultery  with  promise 
of,  or  attempt  at,  marriage,  if  there  be  need  of 
it;  but  not  dispensation  from  the  impediment 
of  can.  1075,  n.  2,  3 ;  that  is,  from  the  other  two 


102      IMPEDIMENTS  IN  GENERAL 

impediments  of  crime  which  arise  from  adultery 
and  conjugicide  or  conjugicide  alone. 

97.  1.  In  1912  it  was  represented  to  the  Congrega- 
tion of  the  Sacraments  that  frequently  parties  would 
obtain  a  dispensation  from  a  marriage  ratified  and 
not  consummated  without  obtaining  also  the  dispen- 
sation from  the  impediment  of  crime  which  they  had 
incurred  by  contracting  a  civil  marriage  before  the 
first  one  was  dissolved,  or  again,  parties  who  have 
contracted  a  civil  marriage  before  the  death  of  the 
other  spouse  is  clearly  established,  obtain  afterward 
from  the  Holy  See,  for  the  satisfaction  of  their  con- 
science, a  declaration  of  their  freedom  and  permis- 
sion to  marry,  but  without  thinking  of  the  impedi- 
ment of  crime  which  they  have  incurred  if  the  first 
marriage  was  not  dissolved  when  the  second  one  was 
attempted,  the  result  being  that  those  marriages  are 
not  revalidated,  but  remain  null.     To  remedy  those 
evils  and  prevent  their  recurrence  it  was  decreed, 
June  3,  1912,  with  the  approval  of  the  Sovereign 
Pontiff,  that  for  the  past  all  marriages  that  had  re- 
mained null  for  the  above  reasons  were  revalidated, 
and  for  the  future  the  dispensation  and  permission 
to  marry  granted  by  the  Holy  See  in  such  cases 
should  always  be  considered  as  containing  the  dis- 
pensation from  the  impediment  of  crime.     The  pres- 
ent canon  reproduces  that  part  of  the  decree  which 
concerns  the  future. 

98.  2.  It  should  be  noted  (a)  that  it  has  refer- 
ence only  to  dispensations  or  permissions  to  marry 
granted  by  the  Holy  See;  (6)  that  it  applies  exclu- 
sively to  the  impediment  of  crime  arising  from  adul- 


OBREPTION  AND  SUBREPTION    103 

tery  and  promised  or  attempted  marriage,  not  to  the 
one  arising  from  conjugicide ;  (c)  that  the  dispensa- 
tion from  crime  is  implied  only  in  a  dispensation 
from  a  non-consummated  marriage  or  in  the  permis- 
sion to  contract  a  new  marriage,  not  in  any  other 
dispensation,  nor  in  a  declaration  of  nullity.  (Nou- 
velle  Kevue  Theologique,  Nov.,  1912.) 

XV.    OBREPTION    AND    SUBREPTION    IN 
DISPENSATIONS 

Can.  1054.  Dispensatio  a  minore  impedimento 
concessa,  nullo  sive  obreptionis  sive  subreptionis 
vitio  irritatur,  etsi  unica  causa  finalis  in  precibus 
exposita  falsa  fuerit. 

99.  A  dispensation  from  a  minor  impediment 
is  not  vitiated  by  obreption  or  subreption,  even 
though  the  only  final  cause  alleged  be  false. 

1.  There  is  obreption  in  a  petition  for  dispensa- 
tion when  it  contains  false  statements;  subreption 
when  something  which  should  have  been  expressed  is 
omitted. 

2.  Formerly  the  rule  was  that  any  error  in  the 
supplied,  obreption  or  subreption,  if  due  to  bad  faith, 
always  rendered  the  dispensation  invalid,  even  when 
the  error  was  of  minor  importance,  provided  it  would 
have  some  bearing  on  the  dispensation. 

If  the  obreption  or  subreption  were  committed  in 
good  faith,  the  dispensation  was  invalid  if  the  error 
was  substantial — that  is,  bearing  on  the  impediment 
itself,  or  on  a  necessary  circumstance,  or  on  the  final, 


104      IMPEDIMENTS  IN  GENERAL 

determining  cause.  It  was  valid  if  the  error  was  only 
accidental,  affecting  circumstances  required  only  for 
the  lawfulness,  or  an  impulsive,  not  final  cause. 

100.  3.  In  the  special  rules  for  the  Congregation 
of  the  Sacraments,  published  September  29,   1908 
(A.  A.  S.,  vol.  i,  p.  90),  a  distinction  was  made  be- 
tween impediments  which  were  called  minor  and 
those  which  were  called  major;  and  it  was  ordained 
that  henceforth  dispensations  granted  by  the  Holy 
See  from  the  minor  impediments  would  have  the 
same  force  as  if  they  were  granted  ex  motu  proprio 
et  certa  scientia,  and  would  not  be  liable  to  challenge 
on  the  ground  of  obreption  or  subreption. 

The  present  law  retains  that  distinction  and  lays 
down  the  same  rule;  no  error  or  deceit,  in  the  sup- 
plica,  whether  due  to  bad  faith  or  not,  whether  sub- 
stantial or  accidental,  will  annul  a  dispensation  from 
a  minor  impediment;  the  dispensation  must  be 
granted  by  the  Holy  See. 

101.  Note :  In  can.  66,  it  is  laid  down  as  a  general 
rule  that  power  of  dispensing  includes  power  of  ab- 
solving from  censures  which  would  be  an  obstacle  to 
the  efficacy  of  the  dispensation.     Persons  who  have 
incurred  censures  or  other  ecclesiastical  penalties  are 
not  entitled  to  the  Church's  favors  and  should  be 
absolved  before  receiving  them.     This,  formerly,  was 
necessary  for  the  validity  of  the  favor.     Since  the 
reorganization  of  the  Curia  it  is  generally  required 
only  for  the  licitness.    The  Normos  Peculiares,  c.  iii, 
art.  i,  n.  6,  provide  that  "favors  and  dispensations  of 
every  kind  granted  by  the  Holy  See  are  valid  and 
legitimate,  even  for  those  under  censure,  except  for 


EXECUTION  OF  DISPENSATIONS  105 

such  as  are  excommunicated  by  name  or  suspended 
a  divinis  by  the  Holy  See."  (De  Smet,  n.  393.)  The 
absolution  from  censures  should,  however,  be  given 
before  dispensing,  as  in  the  sacrament  of  Penance  it 
precedes  absolution  from  sin.  The  new  law  supposes 
that  it  will  be  given,  only  it  ordains  that  the  power 
of  giving  it  is  always  contained  in  the  power  of  dis- 
pensing. Those  absolutions  are  called  ad  effectum, 
because  their  efficacy  does  not  go  beyond  what  is 
necessary  to  obtain  a  certain  effect. 

XIV.    EXECUTION  OF  DISPENSATIONS 
BY  ORDINARIES 

Can.  1055.  Dispensationes  super  publicis  impedi- 
mentis  Ordinario  oratorum  commissas,  exsequatur 
Ordinarius  qui  litteras  testimoniales  dedit  vel  preces 
transmisit  ad  Sedem  Apostolicam,  etiamsi  sponsi, 
quo  tempore  exsecutioni  danda  est  dispensatio, 
relicto  illius  dioecesis  domicilio  aut  quasi-domicilio, 
in  aliam  dioecesim  discesserint  non  amplius  rever- 
suri,  monito  tamen  Ordinario  loci  in  quo  matrimon- 
ium  contrahere  cupiunt. 

102.  Dispensations  from  public  impediments, 
entrusted  to  the  Ordinary  of  the  petitioners, 
shall  be  executed  by  that  Ordinary  who  has 
given  testimonial  letters  or  who  has  forwarded 
the  petition  to  the  Holy  See,  even  if  the  parties, 
at  the  time  the  dispensation  is  to  be  executed, 
have  left  their  domicile  or  quasi-domicile  in  Ms 
diocese  and  gone  to  another  diocese  without  in- 
tention of  returning,  due  notification  being 


106      IMPEDIMENTS  IN  GENERAL 

given  to  the  Ordinary  of  the  place  in  which  the 
marriage  is  to  be  celebrated.  (Holy  Office,  Feb- 
ruary 20,  1888.) 

103.  1.  Dispensations  are  said  to  be  granted  in 
gracious  form,  forma  gratiosa,  when  they  are  applied 
to  the  petitioners  directly  by  him  who  grants  them; 
they  are  in  commissorial  form,  forma  commissoria, 
when  he  who  grants  them  entrusts  to  another  their 
execution  and  application  to  the  parties. 

Apostolic  dispensations  are  generally  in  the  com- 
missory  form,  except,  at  times,  the  dispensations  in 
radice.  Bishops  usually  dispense  in  the  gracious 
form ;  they  could  not  use  the  commissory  form  when 
they  act  in  virtue  of  delegated  powers  which  they  are 
not  allowed  to  subdelegate.  The  question  here  is 
about  Apostolic  dispensations. 

2.  When  dispensations  are  for  the  internal  forum 
their  execution  is  usually  entrusted  now  to  the  pastor 
of  the  petitioner  or  to  the  confessor,  chosen  or  to  be 
chosen  by  him  and  approved  by  the  Ordinary.  If 
the  petition  had  been  sent  to  the  S.  Poenitentiaria 
through  the  Ordinary,  the  dispensation  would  be 
directed  to  him  with  instructions  to  forward  it  un- 
opened to  the  confessor  or  pastor. 

104.  3.  Apostolic  dispensations  from  public  im- 
pediments are  to  be  committed  for  execution  to  the 
Ordinary  of  the  petitioners  or  the  Ordinary  of  the 
place,  according  to  the  decree  of  February  20,  1888, 
and  the  present  canon,  which  is  taken  from  it  almost 
literally.     "Ordinary"  means,  as  is  defined  in  that 
document,  not  only  the  Bishop  but  also  the  Vicar- 
General  or  the  Official  and  the  Vicar-Capitular  or 


EXECUTION  OF  DISPENSATIONS  107 

the  Administrator.  The  Ordinary  of  the  petitioners 
is  the  one  through  whom  the  request  has  been  made, 
who  has  endorsed  the  petition  or  sent  it  to  Rome. 

Usually  application  for  dispensation  is  made 
through  the  Ordinary  of  the  place  of  domicile  or 
quasi-domicile,  but  it  may  be  made  also  through 
the  Ordinary  of  the  place  of  origin.  Again,  it  may 
be  the  Ordinary  of  either  party,  although  it  is  proper 
that  it  be  that  of  the  bride,  or  that  of  the  Catholic 
party,  if  the  impediment  is  an  absolute  one  and 
affects  him  directly.  (De  Smet,  n.  379.)  The  faith- 
ful may  also  write  to  Rome  themselves.  In  the  Nor- 
mce  Communes,  c.  x,  n.  1,  it  is  stated  that :  "Each  of 
the  faithful  has  free  access  to  the  Congregations 
of  the  Holy  See,  the  proper  form  being  duly 
observed,  and  his  business  can  be  dealt  with  di- 
rectly." 

The  Ordinary  can  execute  the  dispensation  even 
if  in  the  meantime  the  parties  have  lost  their  domicile 
or  quasi-domicile  in  his  territory;  only  he  should 
notify  the  Ordinary  of  the  place  where  the  marriage 
is  to  be  celebrated.  The  decree  of  1888  added  "if 
he  thinks  it  expedient  to  do  so."  Our  canon  does 
not  contain  that  clause.  According  to  the  same  de- 
cree, the  Ordinary  was  to  execute  the  dispensation 
himself;  he  was  allowed  to  subdelegate  only  another 
Ordinary,  particularly  the  one  in  whose  territory  the 
parties  actually  lived.  He  could  not  subdelegate  the 
pastor,  except  for  the  verification  of  the  facts  and  the 
examination  of  the  petitioners  unless  he  had  received 
special  faculties.  The  present  law  has  not  those  re- 
strictions. 


108      IMPEDIMENTS  IN  GENERAL 

XVII.  TAXES  AND  EXPENSES 

Can.  1056.  Excepta  modica  aliqua  praestatione 
ex  titulo  expensarum  cancellariae  in  dispensation!- 
bus  pro  non  pauperibus,  locorum  Ordinarii  ebrumve 
officiates,  reprobata  quavis  contraria  consuetudine, 
nequeunt,  occasione  concessae  dispensationis,  emo- 
lumentum  ullum  exigere,  nisi  haec  facultas  a  Sancta 
Sede  expresse  eis  data  fuerit ;  et  si  exegerint,  tencn- 
tur  ad  restitutionem. 

105.  Unless    the    permission   has    been    ex- 
pressly granted  by  the  Holy  See,  the  local  Ordi- 
naries or  their  officials,  all  customs  to  the  con- 
trary notwithstanding,  can  not  at  the  occasion 
of  the  granting  of  a  dispensation,  exact  any 
compensation;  and,  if  they  have  exacted  any, 
they  are  bound  to  make  restitution;  excepting, 
for  dispensations  granted  to  those  who  are  not 
poor,  a  small  compensation  for  chancery  ex- 
penses. 

106.  1.  The  Council  of  Trent  decreed  (Sess.  xxiv, 
c.  5,  De  Reformatione  Mat.)  that  marriage  dispensa- 
tions, if  granted  at  all,  should  be  granted  gratuitously. 
The  same  rule  has  been  laid  down  repeatedly  in  in- 
structions of  Popes  and  Congregations  and  in  par- 
ticular indults.     The  Congregation  de  Propaganda 
Fide  reminds  the  Fathers  of  the  Second  Plenary 
Council  of  Baltimore  of  the  law  which  forbids  de- 
manding any  compensation  for  marriage  dispensa- 
tions, on  any  title  whatsoever,  except  when  the  Holy 
See  says  to  impose  some  alms  on  the  petitioners.   The 
S.  Poenitentiaria,  renewing  that  prohibition  in  a  de- 


TAXES  AND  EXPENSES  109 

cree  of  April  26,  1861,  allows  only  a  moderate  tax  as 
a  compensation  for  chancery  work  unless  a  special  in- 
dult  has  been  obtained.  The  Congregation  of  the 
Council,  June  10,  1896,  would  seem  to  make  a  little 
concession.  It  permits  a  tax  for  the  dispensations 
provided  a  uniform  rule  be  adopted  by  the  Bishops  of 
the  province  and  it  be  submitted  to  the  Congregation 
as  an  experiment.  In  practice  there  was  a  great 
variety  of  customs  more  or  less  in  conformity  with 
the  above  directions.  (De  Smet,  n.  386;  De  Becker, 
p.  333.) 

107.  2.  This  canon  abrogates  all  those  customs. 
Not  only  should  there  be  no  charge  for  the  dispensa- 
tion itself,  but  the  granting  of  it  should  not  be  for 
Ordinaries  or  their  officials  an  occasion  for  exacting 
a  remuneration  as  a  compensation  for  work  done  or 
under  any  other  pretext.  Any  money  thus  obtained 
would  have  to  be  restored.  All  that  is  permitted  is 
a  small  retribution  for  chancery  expenses,  and  the 
poor  are  dispensed  from  it.  No  doubt  postal  and 
agency  expenses  are  to  be  defrayed  by  the  petitioners. 
But  "the  tax  for  the  support  of  the  officials  and  for 
the  various  expenses  connected  with  the  chancery 
office  is  legitimate  only  if  it  remains  within  the  limits 
just  defined."  It  is  the  practice  of  the  Holy  See,  in 
certain  cases,  to  impose  upon  those  who  are  not  poor 
what  is  called  a  componenda  (alms),  which  it  is  per- 
missible to  apply  to  pious  works,  and  which  serves  as 
a  reparation  for  the  non-observance  of  the  law.  Or- 
dinaries may  follow  the  same  custom,  but  they  need 
for  this,  as  for  any  departure  from  the  present  rule,  a 
special  authorization  from  the  Holy  See, 


110      IMPEDIMENTS  IN  GENERAL 

XVIII.   MENTION  OF  DELEGATION  WHEN 
DISPENSING 

Can.  1057.  Qui  ex  potestate  a  Sede  Apostolica 
delegata  dispensationem  concedunt,  in  eadem  ex- 
pressam  pontificii  indulti  mentionem  faciant. 

108.  Those  who  dispense  in  virtue  of  a  dele- 
gation from  the  Holy  See  shall  mention  the 
Apostolic  Indult  when  using  it. 

The  delegate  acts,  not  in  his  own  name,  but  in  the 
name  of  the  principal,  and  he  is  asked  to  declare  by 
whose  power  he  is  dispensing,  in  order  that  the 
rights  of  the  superior  be  maintained.  This  is  re- 
quired only  for  the  licitness,  not  for  the  validity,  of 
the  act. 


CHAPTER 

PROHIBITIVE  IMPEDIMENTS1 

109.  Ancient  canonists  speak  of  several  prohibitive 
impediments  which  have  been  abrogated  long  since, 
like  catechism,  various  crimes,  public  penance.     Re- 
cent authors  usually  count  eight :    The  Church's  pro- 
hibition ;  forbidden  time ;  vow ;  betrothal ;  mixed  reli- 
gion; opposition  of  parents;  unworthiness  by  reason 
of  sin,  censure,   or  ignorance;   omission  of  banns. 
Several  of  these  are  not  impediments  in  the  strict 
sense;  betrothal  does  not  produce  any  canonical  im- 
pediment any  more.     The  new  law  has  only :  Vow ; 
legal  relationship,  where  it  is  an  impediment  by 
civil  law;   mixed  religion;   unworthiness   resulting 
from  apostasy,  affiliation  with  condemned  societies, 
censure,  or  public  sin. 

I.    VOW 

Can.  1058.  §  1.  Matrimonium  impedit  votum 
simplex  virginitatis,  castitatis  perfectae,  non  nu- 
bendi,  suscipiendi  ordines  sacros  et  amplectendi 
statum  religiosum. 

§  2.  Nullum  votum  simplex  irritat  matrimonium, 
nisi  irritatio  speciali  Sedis  Apostolicae  praescripto 
pro  aliquibus  statuta  fuerit. 

110.  §  1.  Marriage  is  rendered  illicit  by  the 
simple  vow  not  to  marry,  the  vow  of  virginity 
and  perpetual  chastity,   the   vow  to   receive 

1  Tanquerey,  n.  1015  ff. 

HI 


112     PROHIBITIVE  IMPEDIMENTS 

Sacred  Orders  or  to  embrace  the  religious  life. 
§  2.  No  simple  vow  renders  marriage  invalid 
except  by  special  enactment  of  tbe  Holy  See. 

1.  In  relation  to  marriage,  vows  begin  to  be 
distinguished,  by  the  end  of  the  fourth  century,  into 
private  and  public.  They  are  public  by  the  mere 
fact  that  they  are  made  known  by  the  putting  on  of 
the  religious  habit  and,  for  women,  of  the  veil.  In 
the  twelfth  century  a  somewhat  different  distinction 
was  introduced  by  the  school  of  Bologna  and  then 
received  in  canon  law :  Vows  were  simple  or  solemn. 
Whatever  be  the  real  foundation  for  that  distinction, 
about  which  there  are  several  opinions,  only  those 
vows  are  now  and  have  been  for  a  long  time  recog- 
nized as  solemn  which  are  taken  in  a  solemn  religious 
profession  made  in  an  Order  strictly  so  called.  Vows 
made  in  the  world,  in  a  Religious  Congregation,  or 
in  an  Order  strictly  so  called  but  previous  to  the 
solemn  profession  or  in  place  of  it,  are  all  simple 
vows. 

111.  2.  Simple  vows,  such  as  those  enumerated  in 
this  canon,  do  not  regularly  render  marriage  invalid, 
but  they  render  it  unlawful,  because  they  are  abso- 
lutely or  morally  incompatible  with  the  married  state 
or  with  full  married  life. 

The  Holy  See  can,  however,  attach  annulling 
power  to  certain  simple  vows.  It  was  done  by  Greg- 
ory XIII  in  the  Constitution  Ascendente  Domino 
of  May  25,  1584,  for  the  simple  vows  taken  by  the 
scholastics  of  the  Society  of  Jesus  after  two  years' 
novitiate.  They  can  invalidate  marriage  as  long 


MIXED  RELIGION  113 

as  the  scholastics  remain  members  of  the  Society. 
(De  Smet,  n.  284;  Catholic  Encyclopedia,  Religious 
Life,  Vow.)  Sanchez  and  others  maintained  that  the 
vow  taken  in  the  world  by  a  wife  whose  husband  has 
received  Sacred  Orders  invalidates  marriage  also. 
If  there  was  any  law  to  that  effect  it  must  have  been 
abrogated  by  Boniface  VIII  in  Cap.  un.  de  Voto,  lib. 
iii,  tit.  15,  in  Sexto.  In  the  absence  of  any  clear  text 
an  exception  to  the  general  rule  is  not  to  be  presumed. 
(Ojetti,  Synopsis,  vol.  ii,  n.  1858,  Divortium.) 

II.   LEGAL  RELATIONSHIP 
Can.  1059.     In  iis  regionibus  ubi  lege  civili  legalis 
cognatio,  ex  adoptione  orta,  nuptias  reddit  illicitas, 
jure  quoque  canonico  matrimonium  illicitum  est. 

112.  In  those  countries  in  which  relationship 
resulting  from  legal  adoption  is  a  prohibitive 
impediment  by  civil  law,  it  is  so  also  by  canon 
law.    (Cf.  can.  1080.) 

III.  MIXED  RELIGION 

PBELIMINAEY  NOTIONS 

113.  (a)   The  impediment  of  mixed  religion  as 
distinct  from  that  of  disparity  of  cult  arises  from 
diversity  of  religious  profession  and  exists  between 
two  parties,  one  of  whom  is  a  Catholic,  the  other  a 
baptized  non-Catholic,  whether  a  heretic  •  or  a  schis- 
matic. 

(6)  By  heretic  or  schismatic  is  to  be  understood 
here  one  who  is  affiliated  with  some  heretical  or 
schismatic  sect,  not  one  who  would  simply  have  fallen 
into  some  heresy  secretly,  or  even  one  who  would  have 


114     PROHIBITIVE  IMPEDIMENTS 

publicly  renounced  the  Faith  without  joining  any 
sect.  This  was  the  interpretation  given  by  the  Holy 
Office  in  the  decree  of  January  30,  1867,  and  others, 
and  it  is  retained  by  the  present  legislation,  as  can. 
1065  clearly  implies.  In  other  matters,  as  when  it 
was  question  of  the  law  of  clandestinity,  public  apos- 
tates were  assimilated  to  heretics  (Gasparri,  n.  971 ; 
Answer  of  Holy  Office  to  the  Bishop  of  Monterey, 
Oct.  15,  1865;  Gasparri,  n.  481)  ;  likewise  when  it 
is  question  of  incurring  the  irregularity  ex  haresi 
(Gasparri,  De  Sacra  Ordinatione,  n.  464).  Under 
the  decree  Ne  temere,  art.  11,  and  under  the  present 
legislation,  can.  1099,  f alien-away  Catholics,  even 
after  joining  a  heretical  set,  are  still  considered  as 
Catholics,  and  obliged  to  observe  the  form  of  mar- 
riage; but  this  is  a  special  rule,  made  for  this  case, 
as  can.  1099  shows,  and  is  implied  in  can.  1065. 

(c)  Who  are  to  be  considered  as  affiliated  with 
a  sect?  The  Holy  Office,  in  an  answer  of  April  6, 
1859,  enumerates  the  following:  (1)  those  who,  hav- 
ing been  baptized  in  the  Catholic  Church,  have  been 
brought  up  in  heresy  before  the  age  of  seven  and 
still  profess  it;  (2)  those  who  have  been  brought  up 
by  heretics  rather  than  in  heresy;  (3)  those  who  have 
fallen  into  the  hands  of  heretics  in  their  infancy; 
(4)  those  born  and  baptized  in  heresy.  (De  Smet,  n. 
251;  Collect.,  n.  1174.) 

1.°    EXISTENCE  OP  THE  JMPEDIMENT  OP  MIXED 
RELIGION 

Can.  1060.  Severissime  Ecclesia  ubique  prohibet 
ne  matrimonium  ineatur  inter  duas  personas  bap- 


MIXED  RELIGION  115 

tizatus,  quarum  altera  sit  catholica,  altera  vero  sec- 
tae  haereticae  seu  schismaticae  adscripta;  quod  si 
adsit  perversionis  periculum  conjugis  catholici  et 
prolis,  conjugium  ipsa  etiam  lege  divina  vetatur. 

114.  The  Church  most  severely  forbids  every- 
where marriages  between  two  baptized  persons 
one  of  whom  is  a  Catholic,  the  other  a  member 
of  a  heretical  or  schismatic  sect ;  if  there  is  dan- 
ger of  perversion  for  the  Catholic  party  or  the 
offspring,  the  marriage  is  forbidden  also  by 
divine  law. 

115.  1.  From  the  days  of  St.  John  and  St.  Paul, 
who  forbade  association  with  heretics  (2  John  10, 11 ; 
1  Cor.  v.  11;  Tit.  iii,  10),  the  Church  has  always 
forbidden  mixed  marriages.     The  first  Council  of 
which  we  possess  the  disciplinary  decrees   (Elvira, 
300)  forbids  marriage  with  heretics  unless  they  are 
willing  to  enter  the  Church.     Similar  enactments  are 
found  in  the  Councils  of  Laodicea  (343-381,  c.  10, 
31)  ;  Hippo  (393,  c.  16),  and  others.    In  the  Coun- 
cil in  Trullo  (692),  marriages  with  heretics  are  pro- 
nounced null,  but  that  law  was  never  universally  re- 
ceived in  the  West.    (Esmein,  vol.  i,  p.  218.)     In 
the  Middle  Ages  there  were  few  heretics,  and  they 
were  dealt  with  so  severely  that  the  question  of  mixed 
marriages  was  seldom  raised.     (Boniface  VIII,  cap. 
14,  De  Hseret,  v.  2,  in  Sext. ;  Council  of  Posen,  1309, 
c.  8;  Synod  of  Pressburg.)     With  the  Reformation 
it  became  more  practical.    (Wernz,  n.  576 ;  De  Smet, 
n.  258.)     In  the  sixteenth  century  many  Councils 
and  synods  in  various  parts  of  Europe  renew  the 


116     PROHIBITIVE  IMPEDIMENTS 

ancient  prohibitions.  Popes  condemn  marriages 
with  heretics  in  the  strongest  terms,  particularly  Ur- 
ban VIII,  Clement  XI,  Benedict  XIV,  Pius  IX,  and 
Leo  XIII.  (Tanquerey,  De  Matrimonio,  n.  1027; 
Wernz,  n.  576.) 

116.  2.  The  principal  reason  for  that  prohibition 
is  the  danger  of  perversion  for  the  Catholic  party 
and  for  the  children.  As  long  as  the  danger  remains 
somewhat  proximate  the  divine  law  itself  condemns  a 
mixed  marriage,  and  no  power  on  earth  can  give  a 
dispensation.  But  even  when  the  danger  has  become 
remote  and  the  requirements  of  the  divine  law  are, 
strictly  speaking,  satisfied,  there  is  still  the  ecclesias- 
tical law,  which  forbids  mixed  marriages  under  all 
circumstances  and  which  is  binding  in  all  cases,  be- 
cause it  is  based  on  a  presumption  of  general  danger, 
not  simply  of  fact.  A  mixed  marriage  is  never  with- 
out some  danger  or  some  other  inconveniences. 

3.  Neither  can  custom  prevail  against  that  law. 
The  contrary  opinion  of  some  theologians  of  the 
seventeenth  and  eighteenth  centuries  was  condemned 
by  the  Sovereign  Pontiffs.  "Although  for  a  long 
time  past  the  opinion  had  spread  that  mixed  mar- 
riages may  be  licitly  contracted  without  the  dispensa- 
tion of  the  Holy  See,  that  opinion,  whatever  be  the 
custom  to  the  contrary,  can  not  be  tolerated."  (Holy 
Office,  January  3,  1871;  Collect.,  n.  1434  ad  21"1; 
Wernz,  n.  576.)  It  is  declared  that  Catholics  who 
contract  marriage  with  heretics  without  dispensation 
are  guilty  of  grave  sin.  Pastors  are  forbidden  to 
assist  at  such  marriages,  except  in  a  few  extraordi- 
nary cases,  when  passive  assistance  is  tolerated  to 


MIXED  RELIGION  117 

avoid  greater  evils;  as  when  the  civil  law  compels 
pastors  to  assist.  (Inst.  of  Card.  Lambruschini  to 
the  Bishops  of  Hungary,  April  30,  1841 ;  Pius  VIII 
to  the  Bishops  of  the  province  of  Cologne,  March  25, 
1830;  Instruction  of  Card.  Bernetti  to  the  Bishops 
of  Bavaria,  September  12,  1834;  Gasparri,  n.  347.) 
That  assistance  is  merely  passive  and  does  not  mean 
approval  or  consent,  for  the  marriages  remain  illicit. 

2.°    DISPENSATIONS  FROM  THE  IMPEDIMENT 

Can.  1061.  §  1.  Ecclesia  super  impedimento 
mixtae  religionis  non  dispensat,  nisi: 

1.°     Urgeant  justae  ac  graves  causae; 

2.°  Cautionem  praestiterit  conjux  acatholicus  de 
amovendo  a  conjuge  catholico  perversionis  periculo, 
et  uterque  conjux  de  uni versa  prole  catholice  tantum 
baptizanda  et  educanda; 

3.°  Moralis  habeatur  certitude  de  cautionum  im- 
plemento. 

§  2.     Cautiones  regulariter  in  scriptis  exigantur. 

117.  §  1.  The  Church  grants  no  dispensation 
from  the  impediment  of  mixed  religion,  unless : 

1.°  There  be  just  and  grave  causes ; 

2.°  The  non-Catholic  party  give  guarantees 
that  the  danger  of  perversion  for  the  Catholic 
party  will  be  removed,  and  both  parties  promise 
that  all  the  children  will  be  baptized  and 
brought  up  only  in  the  Catholic  faith; 

3.°  There  be  a  moral  certainty  that  the 
promises  will  be  fulfilled. 

§  2.  Regularly  the  promises  should  be  de- 
manded in  writing. 


118     PROHIBITIVE  IMPEDIMENTS 

1.  Once  the  danger  of  perversion  is  removed,  and 
no  other  serious  inconveniences  are  feared,  there  re- 
mains only  the  ecclesiastical  impediment  from  which 
the  Church  can  and  does  dispense.  At  first  it  was 
only  on  condition  that  the  heretic  would  enter  the 
Church.  Benedict  XIV  testifies  that  this  was  the 
practice  of  his  predecessor,  Innocent  X.  In  the 
seventeenth  century  dispensations  began  to  be 
granted  without  that  condition,  but  rarely  and  only 
for  reasons  of  common  good.  In  the  course  of  the 
eighteenth  and  nineteenth  centuries  they  became 
more  common,  particularly  in  some  countries. 

118.  2.  The  power  of  dispensing  belongs  to  the 
Sovereign  Pontiff  alone  and  to  Bishops  only  by  dele- 
gation. Until  the  eighteenth  century  it  was  very 
seldom  delegated.  At  the  present  time,  in  countries 
where  heretics  are  few,  Bishops  usually  receive  facul- 
ties for  only  a  limited  number  of  cases  (10,  15,  50) 
at  a  time,  and  they  are  to  use  them  only  when  it  is 
not  possible  to  have  recourse  to  the  Holy  See.  In 
countries  where  heretics  are  more  numerous,  as  in  the 
United  States,  faculties  were  granted  without  those 
limitations  but  for  only  a  certain  number  of  years 
(ad  triennium,  ad  quinquennium),  and  Ordinaries 
had  to  report  the  number  of  cases  in  which  they  had 
used  them.  Moreover,  the  Holy  See  asked  from  time 
to  time  (v.g.,  in  1888,  1913),  for  a  more  complete 
report  stating,  as  far  as  can  be  ascertained,  how  many 
mixed  marriages  were  contracted  in  the  diocese  with- 
in a  certain  period  of  time,  say  the  previous  ten 
years ;  how  many  with,  how  many  without,  the  neces- 


MIXED  RELIGION  119 

sary  guarantees  and  dispensation;  what  had  been 
their  results,  etc.  (Circular  of  Card.  Rampolla,  Sec- 
retary of  the  Holy  Office,  August  13,  1913.) 

A  recent  decree  of  the  Consistorial  Cong,  with- 
drew those  general  faculties,  April  25,  1918.  Cases 
have  to  be  referred  to  Rome ;  if,  meanwhile,  an  urgent 
necessity  arises,  the  dispensation  can  be  granted. 
(A.  A.  S.,  May,  1918.) 

119.  3.  CONDITIONS  FOR  THE  DISPENSATION  :  (A) 
Just  and  grave  causes.     A  dispensation  granted  with- 
out cause  by  delegated  power  would  be  null.     What 
causes  will  be  sufficient?     At  present,  reasons  of  a 
private  character  are  accepted,  particularly  in  coun- 
tries where  the  Catholics  are  relatively  few.     The 
fear  lest  the  parties  should  go  and  be  married  by  the 
civil  officer  may  be  a  sufficient  reason  for  the  Ordi- 
nary to  grant  the  dispensation,  but  the  parties  them- 
selves are  guilty  of  grave  sin  for  obtaining  it  by  such 
means.     (Lehmkuhl,  casus  n.  911.) 

120.  (B)   Guarantees,      (a)  Their  object.     The 
divine  law  forbids  mixed  marriages  as  long  as  there 
is  danger  of  perversion  for  the  Catholic  party  or  the 
offspring.     The  Church,  before  granting  a  dispen- 
sation,  demands  that  the  danger  be  removed   and 
moreover,  that  guarantees  to  that  effect  be  given  un- 
der the  form  of  explicit  promises  made  before  a  repre- 
sentative of  the  ecclesiastical  authority.       A  mere 
hope  or  even  a  moral  certainty  founded  only  on  the 
good  will  of  the  parties  is  not  sufficient.    (S.  C.  Inq. 
ad  Episcopos  Hungarise,  July  21,  1880.)     The  non- 
Catholic  party  has  to  promise  that  the  Catholic's 


120     PROHIBITIVE  IMPEDIMENTS 

faith  will  not  be  in  danger;  both  parties  have  to 
promise  that  the  children  will  be  baptized  in  the 
Catholic  Church  and  not  in  any  other,  that  they  will 
receive  a  strictly  and  exclusively  Catholic  education. 
It  will  be  observed  that  these  are  the  only  two  prom- 
ises exacted  by  common  law  as  a  necessary  condition 
for  the  dispensation;  they  constitute  what  is  called 
the  cautiones  in  the  strict  sense.  That  the  Catholic 
party  should  strive  to  convert  the  non-Catholic  one, 
that  the  marriage  should  not  be  celebrated  before  a 
non-Catholic  minister,  is  decreed  in  the  following 
canons,  but  it  is  not  the  object  of  a  formal  promise, 
by  common  law.  Particular  indults  may  demand  it ; 
their  clauses  have  to  be  studied  carefully  and  strictly 
observed. 

121,  (&)  Necessity  of  the  guarantees.  It  is  based 
on  the  divine  law  itself,  and  hence  they  can  never  be 
positively  dispensed  from.  The  practice  which  had 
prevailed  in  Germany  during  the  eighteenth  cen- 
tury and  the  first  part  of  the  nineteenth  of  not 
exacting  them  was  strongly  condemned  by  the  Popes, 
particularly  Benedict  XIV,  Pius  VI,  Pius  VIII, 
Gregory  XVI.  (McCaffrey,  History  of  the  Church 
in  the  Nineteenth  Century,  vol.  i,  ch.  11,  p.  95;  G. 
Goyau,  L'Allemagne  religieuse,  vol.  ii,  p.  136.)  They 
should  be  insisted  on  even  in  articulo  mortis,  and  the 
Catholic  party  should  not  be  left  in  good  faith  (Holy 
'Office,  January  3,  1871;  March  18,  1891),  whether 
it  is  question  of  a  marriage  in  contemplation  or  one 
already  contracted,  whether  the  dispensation  is  to 
be  granted  by  the  Holy  See  or  by  a  delegate. 


MIXED  RELIGION  121 

In  Prussia  the  civil  law  of  August  17,  1825,  pro- 
vided that  in  mixed  marriages  the  education  of  the 
children  should  be  left  to  the  father,  and  priests  were 
forbidden  to  demand  any  promises.  Pius  VIII  in 
his  letter  of  March  25,  1830,  granted  permission  to 
pastors  to  assist  in  a  merely  passive  manner  at  mar- 
riages contracted  under  those  conditions;  but  there 
was  no  dispensation  from  the  promises,  the  marriage 
remained  unlawful;  pastors  were  simply  permitted 
to  witness  an  unlawful  action  in  order  to  avoid 
greater  evils.  (Gasparri,  n.  454.) 

If  the  Catholic  party  was  well  disposed  and  prom- 
ised to  fulfil  all  the  clauses  to  the  best  of  his  ability, 
but  the  non-Catholic  party  could  not  be  induced  to 
make  any  promise,  might  not  a  dispensation  be 
granted  to  the  former  in  a  case  of  very  urgent  neces- 
sity, that  is  to  say,  when  the  eternal  salvation  of  the 
party  would  depend  on  it,  supposing  that  there  would 
be  no  danger  of  perversion  for  him  or  for  the  chil- 
dren ?  The  concession  has  been  made  for  the  revali- 
dation  of  marriages  already  contracted  and  "might 
perhaps  be  made  also  in  the  case  of  a  marriage  to  be 
contracted  in  very  urgent  necessity."  (De  Smet,  n. 
254;  Putzer,  o.  c.  n.  220;  Nouvelle  Revue  Theolo- 
gique,  January,  1913,  p.  11.)  In  reality,  there  would 
not  be  a  dispensation  from  the  promises;  the  party 
who  refuses  to  make  them  receives  no  permission  to 
marry.  It  is  granted  only  to  the  one  who  does  make 
them,  for  very  urgent  reasons.  That  concession, 
however,  could  regularly  be  made  only  by  the  Holy 
See,  for  a  dispensation  granted  by  a  Bishop  is  not 


122      PROHIBITIVE  IMPEDIMENTS 

valid  unless  all  the  conditions  laid  down  in  the  indult 
are  fulfilled,  and  exacting  the  promises  is  one  of 
them.1  If  there  was  no  time  for  recourse  to  Rome, 
the  rules  formulated  in  can.  1043-45  might  find 
their  application.  (Putzer,  n.  220 ;  Decrees  of  June 
12,  1912;  N.  R.  T.,  January,  1913;  Answer  to  Bp. 
Elder,  A.  S.  S.,  vol.  xxx,  p.  381 ;  Indult  in  Eccl.  Rev., 
March,  1914;  Collectanea,  nn.  1263,  1271,  1273; 
Holy  Office,  April  12,  1889 ;  De  Becker,  De  Sponsali- 
bus  et  Matrimonio,  p.  242.) 

122.  (c)  The  promises  ought  not  to  be  a  mere 
formality,  but  they  must  be  made  sincerely  and  con- 
stitute a  real  guarantee  that  the  required  conditions 
will  be  fulfilled.  In  what  form  they  should  be  made 
was  not  till  now  determined  by  any  general  law. 
Particular  law  or  custom  could  demand  that  they  be 
made  in  writing,  or  on  oath  or  in  presence  of  wit- 
nesses. Several  canonists  expressed  the  view  that  a 
mere  oral  promise  on  the  part  of  the  non-Catholic 


1  Some  few  Bishops  of  the  United  States,  not  without 
insistence,  have  obtained  from  the  Holy  See  a  general  indult, 
which  enables  them  to  grant  a  sanatio  in  radice  in  marriages 
contracted  with  the  impediment  of  mixed  religion  or  disparity 
of  worship  before  a  civil  magistrate  or  a  non-Catholic  min- 
ister. The  ordinary  promises  are  demanded  of  the  Catholic 
party.  (Eccl.  Review,  June,  1916,  p.  717.) 

Those  faculties  are  usually  granted  for  cases  in  which  the 
non-Catholic  party  refuses  to  appear  before  the  priest.  Ac- 
cording to  a  decree  of  the  Holy  Office  of  December  22,  1916 
(A.  A.  S.,  January,  1917,  p.  13),  if  the  non-Catholic  party 
consents  to  appear  before  the  priest,  but  refuses  to  give  the 
promises,  recourse  should  be  had  in  that  case  also  to  a  sanatio 
in  radice  rather  than  receive  the  renewal  of  the  consent  in  a 
merely  passive  manner.  But  special  faculties  should  be  ob- 
tained for  that  from  the  Holy  See. 


MIXED  RELIGION  123 

party  would  ordinarily  not  be  sufficient.  (Wernz,  n. 
587,  note;  Gasparri,  n.  453.)  The  Holy  Office  de- 
clared, December  10,  1902,  that  the  assertion  of  the 
Catholic  party,  even  confirmed  by  oath,  that  the  non- 
Catholic  has  made  the  necessary  promises,  would  not 
of  itself  and  generally  be  sufficient.  (Coll.,  2155.) 
The  Council  of  South  America  held  at  Rome  in  1899 
required  a  written  and  sworn  promise.  The  Second 
Plenary  Council  of  Baltimore  demanded  a  solemnis 
promissio  coram  Deo.  The  common  law  now  de- 
mands that  the  promises  be  made  in  writing,  as  a  rule. 

3.°    CONVERSION  OP  THE  NON-CATHOLIC  PARTY 

Can.  1062.  Conjux  catholicus  obligatione  tenetur 
conversionem  conjugis  acatholici  prudenter  curandi, 

123.  The  Catholic  party  is  bound  prudently 
to  procure  the  conversion  of  the  non-Catholic 
party. 

This  is  the  best,  often  the  only,  means  of  removing 
all  danger  of  perversion.  In  itself,  however,  it  is 
only  a  duty  of  charity  following  upon  the  marriage 
already  contracted,  and  not,  like  the  removing  of 
danger  of  perversion,  a  condition  intrinsically  neces- 
sary for  the  lawfulness  of  the  marriage.  Hence  com- 
mon law  does  not  demand  here  a  formal  promise 
made  beforehand;  but  some  particular  indults  do, 
and  then  it  has  to  be  exacted  at  least  for  the  licitness 
of  the  dispensation  and  probably  for  the  validity. 
(Canoniste  Contemporain,  Juillet,  1912,  p.  502.) 


124     PROHIBITIVE  IMPEDIMENTS 

4."    PROHIBITION  TO  APPEAB  BEFORE  THE  NON- 
CATHOLIC  MINISTER 

Can.  1063.  §  1.  Etsi  ab  Ecclesia  obtenta  sit 
dispensatio  super  impedimento  mixtae  religionis, 
conjuges  nequeunt,  vel  ante  vel  post  matrimonium 
coram  Ecclesia  initum,  adire  quoque,  sive  per  se  sive 
per  procuratorem,  ministrum  acatholicum  uti  sacris 
addictum,  ad  matrimonialem  consensum  praestan- 
dum  vel  renovandum. 

§  2.  Si  parochus  certe  noverit  sponsos  hanc 
legem  violaturos  esse  vel  jam  violasse,  eorum  matri- 
monio  ne  assistat,  nisi  ex  gravissimis  causis,  remoto 
scandalo  et  consulto  prius  Ordinario. 

§  3.  Non  improbatur  tamen  quod,  lege  civili 
jubente,  conjuges  se  sistant  etiam  coram  ministro 
acatholico,  officialis  civilis  tantum  munere  fungente, 
idque  ad  actum  civilem  dumtaxat  explendum,  eff ec- 
tuum  civilium  gratia. 

124.  §  1.  Even  when  a  dispensation  from  the 
impediment  of  mixed  religion  has  been  obtained 
from  the  Church,  the  parties  can  not,  either 
before  or  after  their  marriage  before  the 
Church,  go,  whether  personally  or  through  a 
representative,  before  a  non-Catholic  minister, 
in  the  exercise  of  his  office,  for  the  purpose  of 
giving  or  renewing  their  matrimonial  consent. 

§  2.  If  the  pastor  knows  for  certain  that  the 
parties  are  to  violate  that  law,  or  have  violated 
it  already,  he  shall  not-assist  at  their  marriage, 
except  for  very  grave  reasons,  all  danger  of 
scandal  being  removed  and  the  Ordinary  hav- 
ing been  consulted. 


MIXED  RELIGION  125 

§  3.  It  is  not,  however,  forbidden  for  the  par- 
ties, when  the  civil  law  demands  it,  to  present 
themselves  before  a  non- Catholic  minister,  act- 
ing as  a  civil  magistrate,  solely  to  comply  with 
a  civil  formality,  for  the  sake  of  civil  effects. 

1.  Permission  to  marry  a  heretic  does  not  imply 
permission  to  give  or  even  to  renew  the  marriage  con- 
sent before  a  heretical  minister.  Marriage  is  a  reli- 
gious contract,  and  to  seek  for  it  the  sanction,  under 
any  form,  of  a  heretical  or  schismatic  society,  is  to 
make  profession,  externally,  of  heresy  or  schism ;  and 
this  is  against  the  law  of  Christ  as  against  the  law  of 
the  Church,  and  is  punished  with  excommunication. 
A  promise  to  observe  that  law  is  demanded  by  some 
indults  as  a  condition  for  the  dispensation. 

125.  2.  If  the  pastor  was  informed  by  the  parties 
that  they  have  appeared  or  are  to  appear  before  the 
non-Catholic  minister,  or  if  he  was  asked  for  permis- 
sion to  do  so,  he  could  not  give  his  consent  implicitly 
or  explicitly  and  should  refuse  to  assist  at  the  mar- 
riage. Should  he  know  otherwise  of  the  intention 
of  the  parties,  regularly  he  could  not  remain  silent 
but  should  remind  them  of  the  Church's  law,  and  if 
they  persisted  in  their  determination  he  should  not 
assist  at  their  marriage.  This  rule,  however,  is  not 
so  absolute  that  exceptions  can  not  be  permitted  for 
very  grave  reasons.  In  an  instruction  of  the  Holy 
Office  it  is  said  that  the  pastor  should  keep  silence  if 
he  foresaw  "that  his  admonition  would  certainly  be 
unsuccessful  and  even  harmful,  inasmuch  as  it  would 
cause  the  material  sin  to  become  a  formal  one." 


126     PROHIBITIVE  IMPEDIMENTS 

(February  17,  1864;  December  12,  1888;  Collect.,  n. 
1444;  February  17,  1864;  Collect.,  n.  1431;  Gas- 
parri,  n.  466.)  Care  has  to  be  taken  to  avoid  scandal, 
and,  because  of  the  gravity  of  the  matter,  the  Ordi- 
nary should  be  consulted.  If  the  pastor  had  only  a 
probability  or  a  suspicion  of  the  intention  of  the  par- 
ties to  go  before  the  minister,  the  obligation  to  re- 
fuse his  co-operation  would  not  be  the  same,  and 
prudence  might  often  recommend  silence  in  such 
cases. 

126.  3.  What  is  forbidden  is  to  go  before  a  non- 
Catholic  minister  acting  as  such,  not  if  he  was  acting 
as  a  purely  civil  magistrate.  If  he  acted  at  the  same 
time  as  the  representative  of  a  religious  body  and  of 
the  civil  authority,  recourse  to  him  would  not  be  per- 
mitted. A  minister  of  religion  must  generally  be 
considered  as  acting  in  the  former  capacity  when  he 
is  in  church  or  vested  in  the  insignia  of  his  office. 
If  he  received  the  parties  in  his  house  or  some  such 
place,  and  without  any  religious  vestments  on,  and 
addressed  to  them  words  of  congratulation,  of  advice, 
having  no  confessional  character,  so  that  the  visit 
on  both  sides  would  be  little  more  than  one  of  polite- 
ness or  of  friendship,  there  would  seem  to  be  in  this 
no  violation  of  the  law  of  the  Church,  but  again 
scandal  ought  to  be  avoided.  (Gasparri,  n.  467.) 

5.°   DUTIES  OF  OBDINABIES  AND  OTHER  PASTOBS  OP 
SOUJLS 

Can.  1064.    Ordinarii  aliique  animarum  pastores : 
1.°     Pideles  a  mixtis  nuptiis,  quantum  possum, 
absterreant ; 


MIXED  RELIGION  127 

2.°  Si  eas  impedire  non  valeant,  omni  studio  cur- 
ent  ne  contra  Dei  et  Ecclesiae  leges  contrahantur ; 

3.°  Mixtis  nuptiis  celebratis  sive  in  proprio  sive 
in  alieno  territorio,  sedulo  invigilent  ut  conjuges 
promissiones  factas  fideliter  impleant; 

4.°  Assistentes  matrimonio  servent  praescrip- 
tum  can.  1102. 

127.  Ordinaries  and  other  pastors  of  souls 
shall: 

1.°  As  much  as  they  can,  deter  the  faithful 
from  contracting  mixed  marriages. 

2.°  If  they  can  not  prevent  them,  they  shall 
do  all  in  their  power  to  have  them  celebrated 
according  to  the  laws  of  God  and  of  the  Church. 

3.°  When  a  mixed  marriage  has  been  con- 
tracted, whether  in  their  territory  or  outside  of 
it,  they  shall  watch  over  the  faithful  fulfilment 
of  the  promises. 

4.°  In  assisting  at  those  marriages  they  shall 
follow  the  prescriptions  of  can.  1102. 

1.  The  Church  considers  mixed  marriages  as  an 
evil  and  makes  it  a  duty  for  pastors  of  souls  to  pre- 
vent them,  not  simply  under  this  or  that  circum- 
stance, but  whenever  it  can  be  done.     The  Third 
Plenary  Council  of  Baltimore  gives  the  same  direc- 
tion, and  points  out  the  means  that  may  be  used. 
(n.  133.) 

2.  If  they  can  not  be  prevented,  pastors  should  do 
all  they  can  to  render  them  less  harmful  by  endeavor- 
ing to  obtain  a  faithful  observance  of  the  laws  of  the 
Church  on  the  matter. 


128      PROHIBITIVE  IMPEDIMENTS 

128.  3.  After  a  mixed  marriage  has  been  con- 
tracted by  one  of  his  parishioners,  whether  it  took 
place  in  his  territory  or  elsewhere,   the  pastor  or 
Ordinary  is  bound  to  see  that  the  conditions  are 
fulfilled  as  far  as  depends  on  him;  not  that  the  non- 
fulfilment  of  the  promises  would  affect  the  marriage 
already  contracted,  but  for  other  obvious  reasons. 
That  obligation  is  a  grave  one,  as  is  explicitly  de- 
clared in  an  instruction  of  the  Propaganda  to  the 
Archbishop  of  Baltimore,  June  25,  1884;  and  an 
instruction  of  the  Sacred  Congregation  of  the  In- 
quisition adds  that  as,  in  a  matter  of  such  impor- 
tance, nothing  should  be  left  to  the  discretion  of  the 
pastors,  the  latter  should  be  requested  to  report  to  the 
Bishop  as  soon  as  possible  every  mixed  marriage  in 
contemplation,  giving  all  the  information  about  the 
place,  the  persons,  etc.,  and  both  Bishop  and  pastor 
should  watch  over  the  faithful  observance  of  the 
promises.      (Gasparri,  n.  472.) 

129.  It  is  supposed  here  that  the  marriage  was  con- 
tracted validly  and  lawfully,     (a)  What  should  be 
done  if   it  had   been   contracted   unlawfully — v.g., 
without  a  dispensation?     As  long  as  the  marriage 
is  not  invalid,  the  parties  may  live  together.     The 
Catholic  party,  however,  is  guilty  of  grave  sin,  from 
which   absolution  can  not  be   obtained  unless   the 
neglected  formalities  be  now  complied  with.     More- 
over, if  the  marriage  was  contracted  before  a  non- 
Catholic  minister,  an  excommunication  reserved  to 
the  Bishop  has  been  incurred.     (Inst.  of  Holy  Office, 
January  3,  1871;  De  delictis  et  poenis,  can.  2319; 
Gasparri,  n.  468;  Wernz,  n.  588;  Putzer,  n.  139.) 


MIXED  RELIGION  129 

(6)  If  the  marriage  was  also  null  because  of  the 
impediment  of  clandestinity,  as  will  frequently  occur 
under  the  new  legislation,  or  because  of  some  other 
diriment  impediment,  the  parties  ought  either  to 
separate  or  to  have  their  marriage  revalidated.  To 
have  it  revalidated  they  must  obtain  the  dispensation 
from  the  impediment  of  mixed  religion,  make  the 
necessary  promises  and  renew  the  consent  in  the 
proper  form. 

It  may  happen  that  the  non-Catholic  party  is  not 
willing  to  go  before  the  priest  and  renew  the  con- 
sent. The  remedy  then  would  be  a  dispensation  in 
radice,  as  will  be  explained  later.  If  the  Catholic 
party  being  ready  to  comply  with  all  the  require- 
ments, the  non-Catholic  one  refused  to  make  the 
promises,  and  on  the  other  hand  the  separation  was 
very  difficult,  dispensation  might  be  granted  by  the 
Holy  See  or,  in  some  cases  of  necessity,  by  the  Bishop, 
as  said  above — can.  1043-1045.  (De  Smet,  n.  258.) 
According  to  the  Holy  Office  (December  22,  1916 — 
A.  A.  S.  January,  1917,  p.  13),  rather  than  to  have 
the  marriage  contracted  before  the  Church  without 
the  promises,  a  dispensation  in  radice  should  be  ob- 
tained from  the  Holy  See.  Some  Bishops  have 
faculties  to  dispense  in  certain  cases.  (Inqui., 
April  12,  1899 ;  Ecclesiastical  Keview,  March,  1915  ; 
June,  1916,  p.  717.)  When,  as  a  matter  of  fact,  the 
non-Catholic  party  has  fulfilled  the  conditions,  the 
children  have  been  brought  up  in  the  true  Faith,  and 
the  Catholic  party  has  been  left  entirely  free  to  prac- 
tise his  religion,  there  is  not  the  same  need  of  formal 
promises,  (Putzer,  o.  c.  n.  220.) 


130      PROHIBITIVE  IMPEDIMENTS 

4.  For  the  manner  of  assisting  at  mixed  marriages 
we  are  referred  to  canon  1102. 

IV.    UNWORTHINESS 

130.  Several  causes  of  tmworthiness  are  enumer- 
ated by  canonists:  sin,  censure,  affiliation  with  for- 
bidden societies,  insufficient  knowledge  of  catechism, 
etc.  Two  kinds  are  considered  here: 

1.°    UNWORTHINESS    BY    REASON    OF     APOSTASY     OB 
AFFILIATION  WITH  FORBIDDEN  SOCIETIES 

Can.  1065.  §  1.  Absterreantur  quoque  fideles  a 
matrimonio  contrahendo  cum  iis  qui  notorie  aut 
catholicam  fidem  abjecerunt,  etsi  ad  sectam  acatho- 
licam  non  transierint,  aut  societatibus  ab  Ecclesia 
damnatis  adscript!  sunt. 

§  2.  Parochus  praedictis  nuptiis  ne  assistat,  nisi 
consulto  Ordinario,  qui,  inspectis  omnibus  rei  ad- 
junctis,  ei  permittere  poterit  ut  matrimonio  intersit, 
dummodo  urgeat  gravis  causa  et  pro  suo  prudent! 
arbitrio  Ordinarius  judicet  satis  cautum  esse  catho- 
licae  education!  universae  prolis  et  remotioni  peri- 
culi  perversionis  alterius  conjugis. 

§  1.  The  faithful  shall  be  deterred  also  from 
contracting  marriage  with  those  who  have  no- 
toriously renounced  the  Catholic  faith  without, 
however,  joining  a  non-Catholic  sect,  or  with 
those  who  are  notoriously  affiliated  with  socie- 
ties condemned  by  the_  Church. 

§  2.  The  pastor  shall  not  assist  at  such  mar- 
riages, except  after  consulting  the  Ordinary, 
who,  everything  being  considered,  may  permit 
it,  provided  that  there  be  a  grave  reason  for 


UNWORTHINESS  131 

doing  so,  and  the  Ordinary  judge,  in  his  pru- 
dence, that  sufficient  provision  is  made  for  the 
Catholic  education  of  all  the  children,  and 
against  danger  of  perversion  for  the  other 
party. 

Several  times,  particularly  in  recent  years,  Rome 
had  been  asked  what  was  to  be  done  in  those  cases, 
which  were  becoming  more  and  more  frequent,  of 
Catholics  wishing  to  marry  members  of  condemned 
societies  or  persons  who,  without  joining  any  other  re- 
ligious organization,  had  practically  ceased  to  be  mem- 
bers of  the  Church  and  had  fallen  into  indifferentism, 
rationalism,  unbelief.  The  answers  given  were  only 
for  particular  cases  and  of  a  provisional  character. 
Pastors  were  directed  to  see  in  each  case  what  was 
more  prudent  and,  if  grave  difficulties  would  arise, 
to  consult  the  Congregation,  until  a  general  rule 
would  be  promulgated  by  the  Holy  See.  (Gasparri, 
n.  481.)  That  rule  we  have  now  in  this  canon. 

131.  1.  The  apostates  and  members  of  condemned 
societies  come  under  this  law  only  when  they  are 
notorious,  when  they  have  renounced  the  Faith  or 
joined  the  societies,  and  this  is  publicly  known.  Mar- 
riage with  them  is  dangerous  and  should  be  dis- 
couraged. 

2.  If  the  faithful  do  not  heed  the  advice,  they  are 
guilty  of  grave  imprudence  and  the  pastor  should 
not  co-operate  in  their  sin  by  assisting  at  their  mar- 
riage. Exceptions  to  that  rule  should  not  be  made 
without  consulting  the  Ordinary.  He  may  permit 
a  priest  to  assist  at  such  marriages,  but  a  grave  rea- 


132      PROHIBITIVE  IMPEDIMENTS 

son  is  required ;  and  the  danger  to  the  children  or  to 
the  Catholic  party  must  be  removed.  No  dispensa- 
tion is  required,  because  unworthiness  is  not,  strictly 
speaking,  a  canonical  impediment.  No  formal 
promises  are  exacted. 

This  is  the  common  law,  but  particular  legislation 
may  be  more  exacting,  as  it  has  been,  in  the  past,  in 
some  places. 

2.°   PUBLIC  SIN  AND   OENSUBB 

Can.  1066.  Si  publicus  peccator  aut  censura 
notorie  innodatus  prius  ad  sacramentalem  confes- 
sionem  accedere  aut  cum  Ecclesia  reccnciliari  re- 
cusaverit,  parochus  ejus  matrimonio  ne  assistat,  nisi 
gravis  urgeat  causa,  de  qua,  si  fieri  possit,  consulat 
Ordinarium. 

132.  If  a  public  sinner  or  one  notoriously  un- 
der censure,  refuses  to  go  to  Confession  before- 
hand or  to  be  reconciled  with  the  Church,  the 
pastor  shall  not  assist  at  his  marriage,  except 
for  grave  reasons,  about  which  he  shall,  if  pos- 
sible, consult  the  Ordinary. 

The  priest  who  assists  at  the  unworthy  reception 
of  the  sacrament  of  marriage  co-operates,  although 
remotely,  in  the  sacrilege  thereby  committed,  and 
this  is  to  be  avoided  except  for  proportionately  grave 
causes.  If  the  unworthiness  is  known  only  through 
confession,  it  can  not  be  taken  into  account  in  the 
external  forum.  If,  although  known  outside  of  the 
confessional,  it  remains  of  a  private  character,  or 
occult,  it  may  be  a  reason  for  the  pastor  to  strive,  on 
moral  grounds,  to  prevent  the  marriage.  But  canon 


UNWORTHINESS  133 

law  is  concerned  only  with  what  pertains  to  the  ex- 
ternal social  order  in  the  Church — with  public  sins 
and  public  censures.  A  sin  is  public  de  jure  when 
it  has  been  proved  juridically,  in  court;  de  facto 
when  it  has  been  committed  in  public  or  has  become 
known  to  a  large  number  of  people.  (Gasparri,  n. 
477.)  A  censure  is  public  or  notorious  when  one 
has  been,  for  example,  excommunicated  by  name,  or 
has  been  denounced  as  such,  or  when  it  is  generally 
known  that  he  has  incurred  the  censure.  As  in  those 
cases  the  guilt  is  publie,  the  reparation  ought  to  be 
also  of  a  public  character,  before  the  pastor  may,  in 
the  name  of  the  Church,  openly  sanction  by  his 
presence  the  marriage  of  the  party.  An  internal  act 
of  contrition  would  not  suffice;  the  reception  of  the 
sacrament  of  Penance  or  absolution  from  censures 
are  required  by  the  Church.  The  presence  of  the 
priest  at  the  marriage  of  one  who  would  refuse  to 
comply  with  these  prescriptions  would,  however,  be 
only  a  material  and  remote  co-operation  and  it  can 
be  permitted  for  grave  reasons.  St.  Alphonsus  gives 
as  sufficient  the  danger  of  death  or  great  evils  affect- 
ing the  community.  Other  authors  add  the  danger 
that  if  assistance  is  denied  by  the  priest,  the  parties 
will  go  before  the  civil  magistrate,  or,  in  general, 
that  greater  evils  are  likely  to  follow  from  refusing 
than  from  consenting  to  assist  at  the  marriage.  But 
as  those  are  difficult  questions  to  decide,  in  which 
also  some  uniformity  of  action  in  the  diocese  is  very 
desirable,  the  pastor  should,  even  when  the  reasons 
appear  sufficient  to  him,  consult  the  Ordinary  if  it 
be  possible.  (Gasparri,  n.  477;  De  Smet,  n.  117.) 


CHAPTER  IV 
DIRIMENT  IMPEDIMENTS 

133.  Many  canonists  count  eighteen  diriment  im- 
pediments, which  they  divide  into  three  classes:  (1) 
those  which  directly  affect  the  consent — error,  con- 
dition, insanity,  violence,  and  fear;  (2)  those  which 
affect  directly  the  contracting  parties,  the  persons  and 
their  capability  of  marrying,  and  are  in  the  nature 
of  inabilities — age,  impotency,  previous  marriage, 
disparity  of  worship,  Orders,  vow,  abduction,  crime, 
consanguinity,  public  decency,  spiritual  and  legal  re- 
lationship; (3)  one  concerns  the  form  of  the  contract 
and  is  known  as  clandestinity.  Strictly  speaking, 
however,  only  those  of  the  second  class  are  matri- 
monial impediments  properly  so  called.  (D'Anni- 
bale,  vol.  iii,  §  208 ;  Gasparri,  nn.  248,  490.)  Those 
of  the  first  are  impediments  to  any  contract  and  not 
so  much  impediments  to  the  contract  as  the  want  of 
one  of  its  constitutive  elements.  This  is  the  view 
taken  by  the  legislator,  who  treats  of  them  not  under 
the  heading  of  impediments  but  in  the  chapter  on 
marriage  consent.  The  form  prescribed  by  the 
Church  does  not  constitute  an  incapacity  to  marry, 
since  it  depends  on  the  parties  to  observe  it.  It  be- 
longs to  a  distinct  order  of  things  and  is  the  object 
of  a  distinct  chapter.  To  marry  validly  one  must  be 
willing  to  do  so,  observe  the  proper  formalities,  and 
not  be  bound  by  any  impediment. 

The  Council  of  Trent  reduced  the  impediments  in 
number  and  in  extent,  because,  it  said,  on  account  of 

135 


136         DIRIMENT  IMPEDIMENTS 

the  multitude  of  prohibitions,  people  would,  through 
ignorance,  form  illegitimate  unions  which  can  not 
be  persevered  in  without  sin  nor  dissolved  without 
scandal.  (Sess.  xxiv,  cap.  11,  de  Kef.  Mat.)  The 
need  of  further  reductions  was  often  felt  in  modern 
times  and  several  vota  in  that  sense  were  presented 
by  the  Fathers  of  the  Vatican  Council.  What  it  was 
not  possible  for  the  Council  to  do  has  now  been  done 
by  the  new  legislation,  which  thus  continues  and 
completes  the  work  of  the  Council  of  Trent. 

I.  AGE 

134.  There  are  two  impediments  arising  from 
bodily  incapacity — age  and  impotency. 

Can.  1067.  §  1.  Vir  ante  decimum  sextum  aetatis 
annum  completum,  mulier  ante  decimum  quartum 
item  completum,  matrimonium  validum  inire  non 
possunt. 

§  2.  Licet  matrimonium  post  praedictam  aetatem 
contractum  validum  sit,  curent  tamen  animarum 
pastores  ab  eo  avertere  juvenes  ante  aetatem,  qua, 
secundum  regionis  receptos  mores,  matrimonium 
iniri  solet. 

§  1.  Males  who  have  not  completed  their 
sixteenth  and  females  who  have  not  completed 
their  fourteenth  year  can  not  marry  validly. 

§  2.  Although  marriage  contracted  after  that 
age  be  valid,  pastors  of  souls  shall  take  care  to 
deter  from  it  young  people  who  have  not 
reached  the  age  at  which,  according  to  the  cus- 
toms of  the  country,  marriage  is  usually  con- 
tracted. 


AGE  137 

1.°'  No  age  is  required  by  the  natural  law  for 
validly  contracting  marriage,  but  only  sufficient  dis- 
cretion to  give  a  matrimonial  consent,  which  may 
exist  post  septennium,  according  to  canonists.  (De 
Becker.) 

135.  2.°  Formerly   the   law   of   the   Church   re- 
quired, besides  sufficient  discretion,  puberty  or  the 
power  of  procreating,  and  both  were  supposed  to  exist 
at  the  age  of  twelve  in  females  and  of  fourteen  in 
males,  not  before,  unless  the  contrary  was  proved. 
Hence  marriages  contracted  before  that  age  were 
considered  as  null  unless  it  could  be  proved  that  the 
parties  possessed  both  sufficient  discretion  and  pu- 
berty; contracted  after  that  age,  they  were  consid- 
ered as  valid  unless  it  was  proved  that  one  or  both 
parties  wanted  the  necessary  discretion. 

The  present  law  introduces  two  changes  the  reason 
of  which  is  easy  to  perceive:  (1)  The  legal  age  for 
marriage  is  now  14  and  16.  (2)  Marriage  con- 
tracted before  that  age,  without  dispensation,  will 
always  be  null,  and  there  will  be  no  occasion  for 
inquiring  whether  "precocity  supplies  the  defect  of 
age." 

136.  3.°  The    ecclesiastical    impediment    of    age 
may  be  dispensed  from  and  it  is  not  binding  on  un- 
baptized  persons,   even  when  contracting  marriage 
with    Christians.      Provided   the   unbaptized   party 
possesses  the  discretion  demanded  by  the  natural  law 
and  the  baptized  one  is  of  legal  age,  the  contract  may 
be  valid.    The  provisions  of  the  civil  law  would  also 
have  to  be  taken  into  account  with  regard  to  the  un- 
baptized. 


138         DIRIMENT  IMPEDIMENTS 

4.*  The  Church,  in  determining  the  age  required 
for  the  validity  of  marriage,  must  have  in  view  con- 
ditions and  customs  prevailing  in  the  various  parts 
of  the  world;  in  some,  marriage  is  contracted  at  a 
much  earlier  age  than  in  others.  But,  if  the  age  of 
14  and  16  respectively  is  recognized  as  sufficient 
everywhere  for  the  validity,  it  is  not  always  so  for 
the  licitness  and  expediency.  In  cold  climates,  says 
Lehmkuhl  (v.  ii,  748),  it  will  hardly  be  lawful  and 
seldom  expedient  to  marry  before  the  age  of  18  and 
20  or  even  later.  Pastors  are  directed  to  use  their 
influence  to  prevent  premature  marriages,  which  ordi- 
narily are  entered  into  without  sufficient  deliberation 
or  physical  maturity,  and  are  detrimental  to  both 
soul  and  body.  On  the  other  hand,  the  Church  does 
not  approve  of  unreasonably  late  marriages.  The 
age  of  24  is  considered  as  cetas  superadulta  in  a  wo- 
man, with  regard  to  marriage,  and  for  that  reason 
accepted  as  a  canonical  reason  for  dispensation. 

II.   IMPOTENCY 

Can.  1068.  §  1.  Impotentia  antecedens  et  per- 
petua,  sive  ex  parte  viri  sive  ex  parte  mulieris,  sive 
alteri  cognita  sive  non,  sive  absoluta  sive  relativa, 
matrimonium  ipso  naturae  jure  dirimit. 

§  2.  Si  impedimentum  impotentiae  dubium  sit, 
sive  dubio  juris  sive  dubio  facti,  matrimonium  non 
est  impediendum. 

§  3.  Sterilitas  matrimonium  nee  dirimit  nee  im- 
pedit. 

137.  §  1.  Impotency  anterior  to  the  marriage 
and  perpetual,  whether  in  the  man  or  in  the 


IMPOTENCY  139 

woman,  whether  known  to  the  other  party  or 
not,  whether  absolute  or  relative,  annuls  mar- 
riage by  the  very  law  of  nature. 

§  2.  If  the  impediment  of  impotency  is  doubt- 
ful, whether  the  doubt  be  one  of  fact  or  of  right, 
marriage  ought  to  be  permitted. 

§  3.  Sterility  renders  the  marriage  neither 
invalid  nor  illicit. 

1.°    NATUBE   AND    SPECIES   OP    IMPOTENCY 

Authors  do  not  agree  as  to  what  constitutes  real 
impotency,  and  the  legislator  has  avoided  settling  the 
controversy.  Impotency  differs  from  sterility.  The 
latter  is  not,  of  itself,  even  a  prohibitory  impediment, 
as  has  always  been  the  common  teaching  and  is  here 
explicitly  declared ;  the  former  is  a  diriment  impedi- 
ment. Sterility  is  defined  impotentia  generandi; 
impotency,  impotentia  coeundi,  inaptitude  for  con- 
jugal relations,  or  for  those  acts  which  of  their  na- 
ture, per  se>  intrinsically  are  apt  for  generation.  For 
some  this  inaptitude  exists  only  when  normal  sexual 
relations,  which  consist  essentially  in  the  "immissio 
membri  virilis  in  vaginam  mulieris  cum  seminis  ef- 
fusione,"  are  not  possible,  as  in  the  cases  of  aphro- 
disia,  anaphrodisia,  at  times  of  hypospadias  and  epis- 
padias;  of  eunuchs,  spadones;  also  of  persons  who 
have  undergone  the  operation  of  vasectomy,  according 
to  many.  These  authors  would  not  consider  as  impo- 
tent persons  who,  although  capable  of  normal  sexual 
relations  in  the  sense  defined  above,  are  wanting  in 
some  organ  or  condition  essential  for  fecundation, 
such  as  women  who  have  undergone  the  operation 


140         DIRIMENT  IMPEDIMENTS 

of  ovariotomy  or  fallectomy.  For  others,  whenever 
one  element  necessary  for  fecundation  is  wanting 
there  is  not  simply  sterility,  but  impotency,  even  if 
sexual  relations  are  possible,  as  in  women  without 
ovaries.  (Eschbach,  Disputationes  Physiologico- 
Theologicse,  Disp.  2,  pars.  2;  Antonelli,  Medicina 
Pastoralis,  vol.  ii,  p.  154.) 

Impotency  may  be  anterior  or  posterior  to  the  mar- 
riage; absolute  or  relative;  temporary,  when  it  can 
be  cured  by  natural  and  ordinary  means ;  permanent, 
when  it  can  not  be  cured  naturally  or  could  be  cured 
only  by  means  which  would  be  extraordinary  or  dan- 
gerous or  unlawful. 

2.°  ANNULLING  EFFECT 

138.  Impotency  annuls  marriage  by  the  divine  and 
not  simply  by  the  ecclesiastical  law,  as  some  had 
thought  (Gasparri,  n.  526,  7;  Santi,  iv,  xv,  n.  7), 
because  it  means  the  absence  of  the  object  of  the 
marriage  contract  itself.  It  has  that  effect  whether 
it  is  absolute  or  only  relative,  on  the  part  of  the  man 
or  of  the  woman ;  whether  the  healthy  party  knows 
the  infirmity  of  the  other  and  consents  to  the  mar- 
riage in  spite  of  it,  or  not.  To  annul  the  marriage, 
impotency  must  be  anterior  to  it,  for  the  contract, 
once  validly  made,  is  indissoluble ;  and  perpetual,  for 
if  aptitude  for  conjugal  relations  is  to  be  possessed 
some  day  it  can  form  the- object  of  a  valid  contract; 
only  conjugal  relations  are  not  permitted  as  long  as 
the  impotency  lasts. 


IMPOTENCY  141 

3.°    PROOF    OF   THE   IMPEDIMENT 

139.  Impotency  is  difficult  to  prove,  because  it  is 
difficult  in  theory  to  determine  its  conditions  and  in 
practice  to  find  out  whether  the  conditions  are  ful- 
filled or  not;  particularly  whether  the  impotency  is 
anterior  and  perpetual.  A  special  form  of  trial  is 
prescribed  by  the  Church  for  those  cases.  (Gasparri, 
n.  1197;  Benedict  XIV,  Const.  Dei  Miser atione,  n. 
15 ;  Inst.  Aug.  22,  1840 ;  June  20,  1883 ;  Quemad- 
modum,  art.  v) 

Often  impotency  will  remain  doubtful.  If  it  is 
question  of  a  marriage  to  be  contracted,  doubtful 
impotency  will  not  prevent  it,  whether  the  doubt  be 
one  of  right  or  one  of  fact,  as  explicitly  stated  by  the 
law,  because  no  person  is  to  be  supposed  abnormal 
unless  he  be  proved  to  be  so.  Thus  the  Church  per- 
mits marriage  to  women  whose  ovaries  have  been 
totally  amputated,  although  according  to  many  it 
would  constitute  perpetual  impotency.  If  it  is  ques- 
tion of  a  marriage  already  contracted,  it  will  be  held 
as  valid  until  all  reasonable  doubt  is  removed.  Ordi- 
narily, if  the  impotency  is  probable  and  the  marriage 
has  not  been  consummated,  the  Holy  See  will  grant 
a  dispensation  super  matrimonium  ratum  et  non 
consummatum.  If  the  marriage  had  been  dissolved 
on  the  supposition  that  the  impotency  was  perpetual 
and  later  on  it  was  cured,  the  parties  would  have  to 
resume  cohabitation  unless  the  dissolution  of  the  first 
marriage  could  be  obtained  as  ratum  et  non  consum- 
matum. 


142         DIRIMENT  IMPEDIMENTS 

III.  PREVIOUS  AND  EXISTING  MARRIAGE 

Can.  1069.  §  i.  Invalide  matrimonium  attentat 
qui  vinculo  tenetur  prioris  matrimonii,  quanquam 
non  consummati,  salvo  privilegio  fidei. 

§  2.  Quamvis  prius  matrimonium  sit  irritum  aut 
solutum  qualibet  ex  causa,  non  ideo  licet  aliud  con- 
trahere,  antequam  de  prioris  nullitate  aut  solutione 
legitime  et  certo  constiterit. 

140.  §  1.  Marriage  is  rendered  invalid  by  the 
bond  of  a  previous  marriage,  even  only  ratified, 
excepting  the  privilege  of  the  faith. 

§  2.  Although  the  first  marriage  be  null  or 
dissolved  for  whatever  reason,  it  is  not  lawful 
to  contract  another  one  before  the  nullity  or 
dissolution  of  the  first  be  established  legiti- 
mately and  certainly. 

1.°  This  impediment  is  implied  in  the  divine  law 
of  the  unity  of  marriage,  which  now  binds  all  men, 
whether  baptized  or  not,  and  which  admits  of  no 
exception.  A  person,  then,  who  was  married  before 
can  not  be  permitted  to  marry  again  unless  the  first 
marriage  be  null  or  has  been  dissolved.  The  privi- 
lege of  the  faith  forms  an  exception  to  that  rule  only 
in  so  far  that  the  first  marriage  is  dissolved,  not 
before,  but  at  the  very  moment  the  second  one  is 
contracted. 

141.  2.°  A  marriage  may  be  null  for  a  number 
of  reasons — want  of  consent,  existence  of  a  diriment 
impediment.    When  freedom  to  marry  is  claimed  on 
that  ground  the  nullity  has  to  be  recognized  and  pro- 


PREVIOUS  MARRIAGE  143 

nounced  by  the  ecclesiastical  court.  It  is  even  neces- 
sary, ordinarily,  that  there  be  two  sentences  for  the 
nullity  before  it  is  officially  established  and  a  new 
marriage  be  permitted.  (Can.  1986-1989.) 

By  a  decree  of  the  Holy  Office  of  June  5,  1889, 
there  are  three  cases  in  which  one  sentence  will  suf- 
fice, and  the  Ordinary  will  not  have  to  follow  all  the 
formalities  of  a  regular  trial  as  prescribed  by  Bene- 
dict XIV:  (1)  When  the  nullity  is  due  to  an  impedi- 
ment of  disparity  of  worship  and  it  is  evident  that 
one  of  the  parties  was  baptized  and  the  other  was 
not.  (2)  When  it  is  due  to  the  existence  of  pre- 
vious marriage  and  it  is  certain  that  the  first  partner 
is  still  living.  (3)  When  it  is  due  to  impediments 
of  consanguinity,  licit  affinity,  and  spiritual  relation- 
ship which  are  proved  beyond  possibility  of  reason- 
able doubt.  If  the  evidence  was  not  quite  clear,  two 
decisions  would  be  required,  as  was  declared  by  the 
Holy  Office,  March  27,  1902.  One  is  always  neces- 
sary, and  if  it  is  admitted  as  sufficient  it  is  simply 
because  in  such  cases  there  is  little  danger  of  error. 

The  present  law  maintains  those  provisions  and 
adds  the  impediments  of  Sacred  Orders  and  solemn 
vow  (Can.  1990-1992)  to  those  of  consanguinity, 
affinity,  and  spiritual  relationship. 

142.  3.°  Dissolution  may  be  by  solemn  vow,  pon- 
tifical dispensation,  or,  more  commonly,  the  death  of 
the  former  husband  or  wife.  In  the  first  two  cases 
an  authentic  document  showing  the  existence  of  the 
vow  or  of  the  dispensation  will  constitute  a  legitimate 
proof,  and  no  further  formalities  will  be  required. 
If  the  death  of  the  former  husband  or  wife  is  well 


144         DIRIMENT  IMPEDIMENTS 

known  in  the  locality  or  proved  beyond  doubt,  a 
formal  decision  by  the  court  is  not  necessary.  If  it 
occurred  in  some  distant  place,  sufficient  evidence  has 
to  be  secured  to  avoid  danger  of  error  or  fraud.  Ab- 
solute certainty  is  often  impossible  to  obtain  and  the 
Church  does  not  exact  it,  but  moral  certainty  is  de- 
manded ;  and  if  there  remains  a  serious  doubt  the  case 
should  be  referred  to  the  matrimonial  court  for  an 
authoritative  declaration.  How  that  certainty  can 
be  obtained  and  when  the  evidence  may  be  consid- 
ered as  sufficient  can  not  be  denned  in  the  abstract, 
but  we  have  to  guide  us  numerous  decisions  of  par- 
ticular cases  by  the  Roman  Congregations  and  sev- 
eral instructions  of  the  Holy  See,  particularly  the 
instruction  of  Clement  X,  August  21,  1670;  and 
that  of  the  Holy  Office  of  May  13,  1868,  inserted 
in  the  Acts  of  the  Third  Plenary  Council  of  Balti- 
more, p.  258,  and  reproduced  in  the  A.  A.  S.,  vol. 
ii,  an.  1910,  p.  199  seq. 

143.  Here  is  a  summary  of  the  directions  con- 
tained in  the  last  mentioned  document:  (1)  Pro- 
longed absence  is  not,  in  itself,  a  sufficient  proof  of 
death.  (2)  A  certificate  taken  from  the  registers  of 
the  parish,  hospital,  or  army  should  be  obtained  if 
possible.  If  it  can  not  be  obtained  from  the  ecclesi- 
astical it  should  be  obtained  from  the  civil  authori- 
ties of  the  place  in  which  the  party  died.  (3)  If  that 
document  can  not  be  secured,  a  substitute  for  it  may 
be  the  deposition  of  witnesses.  There  must  be  at 
least  two,  worthy  of  credit,  acquainted  with  the  de- 
ceased, testifying,  on  oath,  as  to  what  they  know 
personally  and  agreeing  with  one  another  on  the 


PREVIOUS  MARRIAGE  145 

time,  cause,  and  other  circumstances  of  the  death. 
If  they  were  relations,  companions,  or  associates  of 
the  deceased,  their  testimony  has  still  greater  weight. 
(4)  Although  the  testimony  of  one  single  witness  be 
not  ordinarily  admitted  as  sufficient  to  constitute  a 
full  proof,  in  this  matter,  in  order  that  a  person  may 
not  be  unnecessarily  condemned  to  remain  a  celibate 
against  his  will,  the  Congregation  does  not  reject  it 
provided  the  witness  possesses  the  qualifications  men- 
tioned above,  that  he  be  unexceptionable,  and  that 
his  testimony  be  confirmed  by  other  serious  circum- 
stantial evidence ;  or,  if  such  confirmation  be  wanting, 
that  there  be  nothing  inconsistent  or  improbable  in 
his  deposition.  (5)  The  testimony  of  hearsay  wit- 
nesses may  be  accepted  as  sufficient  when  nothing 
else  can  be  had  and  it  fits  in  with  the  circumstances 
of  the  case.  (6)  At  times  it  is  not  possible  to  have 
even  one  such  witness;  then  every  possible  conjec- 
ture, clue,  or  surmise  should  be  used,  with  the  great- 
est care  and  prudence,  to  constitute  a  proof,  so  that, 
when  all  available  evidence  has  been  collected  and 
duly  weighed,  a  prudent  man  may  consider  the  death 
as  established  with  very  great  probability  if  not 
moral  certainty.  (7)  The  conjectures  or  presump- 
tions which  may  be  used  are,  amongst  others,  the  fol- 
lowing: Did  the  person  in  question  lead  a  good  re- 
ligious life?  Was  he  devoted  to  his  wife?  Had  he 
any  motive  for  hiding  himself?  Did  he  have  any 
property,  or  expect  any?  Did  he  go  away  with  the 
consent  of  his  wife  and  of  his  relations  ?  What  was 
then  his  age — his  state  of  health?  Did  he  write? 
Did  he  manifest  his  intention  of  returning?  Was 


146         DIRIMENT  IMPEDIMENTS 

he  in  a  place  of  danger?  (8)  Common  report  may 
also  constitute  a  proof,  on  condition  that  it  be  sup- 
ported on  oath  by  at  least  two  reliable  witnesses  who 
assign  a  reasonable  cause  for  such  report,  state 
whether  they  have  it  from  the  greater  and  better  part 
of  the  community,  and  believe  in  it  themselves. 
There  must  not  be  reason  to  fear  that  the  rumor  was 
started  by  interested  parties.  (9)  The  investigation 
might  be  made  also  through  the  newspapers. — Proof 
accepted  as  sufficient  for  the  civil  would  not  neces- 
sarily be  so  for  the  ecclesiastical  authority. — When 
there  remains  a  serious  doubt  the  matter  must  be  re- 
ferred to  the  Holy  See. — By  a  decree  of  the  Holy 
Office  of  July  20,  1898  (A.  S.  S.,  vol.  xxxi,  p.  252), 
Bishops  were  authorized  to  declare  free  the  wives  of 
the  Italian  soldiers  who  had  taken  part  in  the  battle 
of  Adona,  provided  it  was  certain  that  they  had  really 
taken  part  in  the  battle  and  that  the  investigation 
made  by  the  government  had  revealed  no  trace  of 
them. 

A  decree  of  December  16,  1910  (A.  A.  S.,  1911, 
p.  26),  contains  a  similar  decision  with  regard  to 
Russian  soldiers  who  took  part  in  the  battle  of  Muk- 
den in  the  Russo-Japanese  war.  With  regard  to  the 
victims  of  the  Messina  earthquake  the  Congregation 
of  the  Sacraments  demanded  that  each  case  be  inves- 
tigated separately  in  accordance  with  the  rules  laid 
down  in  the  instruction  of  1868.1  (March  12,  1910; 
A.  A.  S.,  vol.  ii,  p.  196.). 

1  An  application  of  the  same  rules  may  be  found  in  a  case 
decided  by  the  Congregation  of  the  Sacraments,  January  22, 
1909.  (II  Monitore  Ecclesiastico,  July,  1909,  p.  200;  Nouvelle 


DISPARITY  OF  WORSHIP         147 

IV.    DISPAEITY  OF  WOESHIP 

Can.  1070.  §  1.  Nullum  est  matrimonium  con- 
tractum  a  persona  non  baptizata  cum  persona  bap- 
tizata  in  Ecclesia  catholica  vel  ad  eandem  ex  hae- 
resi  aut  schismate  conversa. 

§  2.  Si  pars  tempore  contract!  matrimonii  tan- 
quam  baptizata  communiter  habebatur  aut  ejus  bap- 
tismus  erat  dubius,  standum  est,  ad  normam  can. 
1014,  pro  valore  matrimonii,  donee  certo  probetur 
alteram  pattern  baptizatam  esse,  alteram  vero  non 
baptizatam. 

Can.  1071.  Quae  de  mixtis  nuptiis  in  canonibus 
1060-1064  praescripta  sunt,  applicari  quoque  debent 
matrimoniis  quibus  obstat  impedimentum  dispari- 
tatis  cultus. 


Revue  Theologique,  Dec.,  1909,  p.  736;  see  also  two  cases  de- 
cided Nov.  28,  Dec.  18,  1914;  A.  A.  S.  22,  Jan.,  1915,  p.  40; 
II  Monitore  Ecclesiastico,  Marzo,  1915,  p.  102;  Canoniste 
Contemporain,  Jan.,  1915,  p.  45;  Ecclesiastical  Review,  Au- 
gust, 1915.) 

Bruno  Buttera  left  Italy  for  Brazil  at  the  age  of  about 
50.  During  the  first  year  he  wrote  almost  every  month  to  his 
wife  and  told  her  that  he  intended  to  go  back  soon.  Then 
he  ceased  to  be  heard  from.  Four  months  after  her  last  letter 
a  fellow-workman  of  his  wrote  announcing  his  death,  and  he 
died  himself  the  same  year. 

Now,  after  twenty  years,  Buttera's  wife  wishes  to  marry 
again.  No  further  evidence  of  his  death  can  be  obtained,  and 
his  letters,  as  well  as  that  of  his  friend,  are  lost,  but  it  is 
commonly  believed  that  he  is  dead.  Considering  that  Buttera 
would  be  now  70  and  that  he  was  not  very  strong;  that  his 
death  was  affirmed  by  a  friend  who  had  no  interest  in  deceiv- 
ing; that  his  silence  can  not  be  accounted  for  otherwise,  as 
he  loved  his  family  and  wrote  frequently  during  the  first 
year;  that  he  had  manifested  his  intention  of  coming  back; 
that  none  of  those  who  went  into  that  country  later  heard 
of  him;  and  that  for  these  reasons  all  his  acquaintances  were 
convinced  that  he  was  dead,  the  Sacred  Congregation  decided 
that  his  wife  might  be  allowed  to  marry  again. 


148         DIRIMENT  IMPEDIMENTS 

144.  §  1.  A  marriage  is  null  when  contracted 
between  a  person  baptized  in,  or  converted  to, 
the  Catholic  Church  and  an  unbaptized  person. 

§  2.  If  the  party,  at  the  time  of  the  marriage, 
was  commonly  considered  as  baptized,  or  if  his 
or  her  baptism  was  doubtful,  the  marriage  is 
to  be  held  as  valid  until  it  is  proved  with  cer- 
tainty that  one  party  was  baptized  and  the 
other  was  not. 

Can.  1071.  What  is  prescribed  by  canons 
1060-1064  for  mixed  marriages  must  be  applied 
to  those  also  to  which  there  is  an  impediment 
of  disparity  of  worship. 

1.°   ORIGIN   OP  THE   IMPEDIMENT 

In  the  first  centuries  of  the  Church,  marriages  of 
the  faithful  with  infidels  were  forbidden  in  very 
much  the  same  terms  as  marriages  with  heretics. 
They  were  unlawful,  but  generally  valid.  Some  early 
Spanish  or  Gallic  Councils  seem  to  declare  them 
null,  but  these  were  particular  laws  and  did  not  re- 
ceive universal  recognition.  There  was  a  tendency, 
however,  to  make  a  difference  between  marriages  with 
heretics  and  marriages  with  infidels ;  and  the  custom 
of  treating  the  latter  as  invalid  spread  gradually, 
particularly  from  the  seventh  century  onward.  It 
had  become  universal  and  obtained  force  of  common 
law  towards  the  twelfth  century,  if  not  much  earlier. 
(Dictionnaire  de  Theologie  Catholique,  Disparite  de 
culte,  p.  1417;  Wernz,  n.  504.)  When  in  the  six- 
teenth century  the  question  was  asked  whether  the 
impediment  was  in  force,  even  in  those  missions, 


DISPARITY  OF  WORSHIP         149 

like  China  and  Japan,  where  the  custom  had  never 
been  received,  the  Holy  See  answered  in  the  affirma- 
tive. 

2.°  NATUBE  AND  EXTENT  OP  THE  IMPEDIMENT 

145.  Under  the  former  discipline,  the  impediment 
of  disparity  of  worship  existed  whenever  one  of  the 
parties  was  baptized,  no  matter  in  what  Christian 
church,  and  the  other  was  unbaptized,  whether  he 
belonged  to  a  Christian  sect  or  not.  It  was  based 
exclusively  on  the  reception  and  non-reception  of 
Baptism,  not,  as  the  impediment  of  mixed  religion, 
on  the  diversity  of  religious  profession.  Henceforth 
it  will  be  based  on  both.  It  will  exist  only  between 
a  Catholic  and  an  unbaptized  non-Catholic,  but  no 
longer,  v.g.,  between  a  baptized  Protestant  and  an 
infidel  or  an  unbaptized  Protestant.  By  "Catholic," 
as  expressly  stated,  is  to  be  understood  any  person 
baptized  in  the  Catholic  Church  or  converted 
to  the  Catholic  Faith,  whether  actually  a  member  of 
the  Church  or  not.  As  for  clandestinity,  the  rule 
holds  here:  Once  a  member  of  the  Church,  always 
subject  to  her  law.  Likewise,  non-Catholics  are  af- 
fected by  the  law  only  when  they  marry  Catholics. 
This  important  change  in  the  discipline  was  rendered 
necessary  by  the  increasing  number  of  Protestants 
who  are  not  baptized,  and  the  consequent  multipli- 
cation of  invalid  marriages  among  them.  In  future, 
fewer  marriages  will  be  affected  by  the  impediment 
and,  as  they  are  marriages  which  ought  to  be  cele- 
brated before  the  Church,  the  dispensation  will  be 
secured  when  needed. 


150         DIRIMENT  IMPEDIMENTS 

3.°  APPLICATIONS 

146.  (1)  In  the  application  of  this  law,  canon- 
ists universally  admitted  the  principle  supported  by 
many  Roman  decisions:  In  relation  to  marriage,  a 
doubtful  baptism  is  a  valid  baptism.  Does  the  rule 
hold  under  the  new  legislation?  It  certainly  does 
when  at  the  time  of  the  marriage  the  baptism  was 
considered  as  certain  or  doubtful,  Nor  is  there  any 
distinction  made  between  a  doubt  of  fact  and  one 
of  law,  nor  between  a  doubt  which  remains  after 
serious  investigation  and  one  about  which  there  has 
been  no  investigation  at  alL  The  marriage  will  be 
presumed  valid  when  contracted  with  the  doubt  as 
well  as  when  the  doubt  arises  after.  On  the  other 
hand,  it  is  certain  that  the  presumption  in  favor  of 
the  marriage  is  not  an  absolute  one,  as  held  by  some 
canonists,  but  it  yields  to  truth. 

There  will  be  no  occasion  for  applying  the  prin- 
ciple in  cases  of  marriage  between  a  certainly  un- 
baptized  and  a  doubtfully  baptized  Protestant,  or  a 
doubtfully  baptized  Protestant  and  an  infidel;  they 
do  not  come  under  the  law.  Will  it  now  apply  in  the 
case  of  a  marriage  between  a  doubtfully  baptized 
Catholic  and  a  certainly  unbaptized  non-Catholic, 
and,  therefore,  should  such  a  marriage  be  declared 
null  ?  It  would  not  seem  so,  although  the  legislator 
may  not  have  had  that  case  in  view ;  for  the  marriage 
is  "to  be  held  as  valid  until  it  is  proved  that  one  of 
the  parties  was  baptized  and  the  other  unbaptized." 
It  is  rather  the  more  general  principle  that  prevails 
here;  marriage  is  presumed  valid  until  the  contrary 
is  proved,  and  this  is  also  in  accordance  with  the 


DISPARITY  OF  WORSHIP         151 

intention  of  the  legislator,  which  is  to  reduce  the 
number  of  invalid  marriages. 

147.  (2)  Is  a  marriage  between  a  Catholic  and 
a  doubtfully  baptized  non-Catholic,  without  dispen- 
sation from  the  impediment  of  disparity  of  wor- 
ship, lawful  as  well  as  valid  ?    The  question  may  not 
be  a  very  practical  one,  and  the  law  does  not  con- 
sider it,  but  the  general  rule  is  that  it  is  not  lawful 
to  contract  marriage  with  a  doubtful  impediment, 
and  there  is  no  obvious   reason  for   admitting  an 
exception  in  this  case.    The  doubt  should  be  removed 
or  the  baptism  administered  again  sub  conditions, 
or  a  dispensation  obtained.    A  dispensation  from  the 
impediment  of  mixed  religion  would  not  suffice  to 
remove  the  impediment  of  disparity  of  worship  if 
it  happened  to  exist.     This  has  been  declared  several 
times  by  the  Congregation  (April  29,  1842,  1890), 
and  the  contrary  opinion  has  no  probability.     The 
practice  of  granting,  ad  cautelam,  the  dispensation 
from  disparity  of  worship  whenever  it  is  granted 
from  mixed  religion,  has  been  reproved  also,  because 
Rome  demands  that  each  case  be  studied  individ- 
ually and  that  power  of  dispensing  be  used  sparingly. 
(Letter   of   Card.    Ledochowsky   to   the   Bishop    of 
Helena,  May  11,  1900;  De  Becker,  1.  c.,  p.  240; 
Nouvelle  Revue  Theologique,  1902,  p.  204;  De  Smet, 
n.  290.) 

148.  (3)  In  practice,  the  difficulty  often  arises 
from  the  want  of  evidence,  in  regard  to  the  existence 
or  the  validity  of  the  baptism  of  Protestants.     As 
these  will  be  affected  by  this  law  only  when  they 
marry  Catholics,  and  as  their  marriage  has,  then,  to 


152         DIRIMENT  IMPEDIMENTS 

be  contracted  in  presence  and  with  the  sanction  of 
the  parish  priest,  there  will  not,  in  future,  be  so 
many  complications  post  factum.  However,  when  a 
doubt  arises,  whether  before  or  after  the  marriage, 
about  baptism,  each  case  has  to  be  investigated  in 
particular  and  the  doubt  removed  as  far  as  is  pos- 
sible. To  guide  us  in  that  investigation  we  have, 
as  before,  the  general  principles  of  law  on  evidence 
and  proofs,  and  the  special  instructions  of  the  Holy 
See,  particularly  the  instruction  of  the  Holy  Office 
to  the  Bishop  of  Annecy,  November  17,  1830,  the 
instruction  of  December  20,  1837  (Second  Plenary 
Council  of  Baltimore,  p.  317),  and  the  instruction 
to  the  Bishop  of  Savannah,  August  1,  1883  (Third 
Plenary  Council  of  Baltimore,  p.  246). 

Baptism  is  a  fact,  and  facts  are  not  presumed,  but 
must  be  proved.  On  the  other  hand,  the  validity  of 
an  act  is  presumed  unless  there  be  some  proof  to  the 
contrary.  To  establish  the  fact  of  baptism,  the  law 
admits  the  testimony  of  a  single  witness,  provided 
he  be  unexceptionable,  there  be  no  reason  to  suspect 
his  truthfulness,  and  no  danger  of  injury  to  a  third 
party;  even  the  testimony  of  the  party  concerned 
may  be  accepted.  (Canon  179,  de  Baptismo.)  In 
default  of  positive  proofs,  we  may  go  on  presump- 
tions. The  rule  laid  down  by  Innocent  IV  (c.  3, 
x,  iii,  xliii)  that  the  fact  of  being  born  of  Christian 
parents  and  brought  up  in  Christian  surroundings 
constitutes,  in  favor  of  baptism,  a  presumption 
which  amounts  to  certainty,  would  not  necessarily 
apply  at  the  present  time  if  it  was  question  of  Protes- 
tants or  very  negligent  Catholics.  For  non-Catholics 


DISPARITY  OF  WORSHIP         153 

the  instructions  prescribe  an  examination  of  the 
teachings  of  the  sect  to  which  the  parties  and  their 
parents  belong,  as  also  the  religious  habits  of  the 
parents  themselves.  If  in  the  sect  baptism  is  held  as 
obligatory  and  a  valid  matter  and  form  ordinarily 
used;  if,  on  the  other  hand,  the  parents  were  strict 
adherents  of  their  religion,  the  baptism  may  be  pre- 
sumed. On  the  contrary,  if  the  parents  belong  to  a 
sect  which  does  not  administer  baptism,  or  if  they 
were  very  careless,  there  is  no  presumption  in  favor 
of  baptism.  When  no  evidence  can  be  obtained  one 
way  or  the  other,  particularly  if  the  question  bears 
on  the  validity  of  a  marriage  already  contracted,  tho 
case  should  be  referred  to  Rome.  (Inst.  of  1883 ; 
The  Catholic  Encyclopedia,  Disparity,  p.  38.)  The 
Holy  Office,  June  2,  1910,  upheld  as  valid  the  mar- 
riage of  a  Protestant  about  whose  baptism  it  was  only 
known  that  the  practice  of  his  family  was  to  have 
all  the  children  baptized.  (De  Smet,  n.  290,  p.  119.) 

4.°    CONDITIONS   FOB  DISPENSATION 

149.  (a)  The  conditions  for  dispensation  are  the 
same  as  for  the  impediment  of  mixed  religion.  The 
danger  of  perversion  must  be  removed,  there  must  be 
a  grave  reason,  and  the  promises  must  be  exacted, 
regularly;  they  can  never  be  positively  dispensed 
from.  Here,  however,  even  more  readily  than  in 
mixed  religion,  because  the  validity  of  the  contract  is 
at  stake,  the  Holy  See  may,  for  very  urgent  reasons, 
in  favor  of  a  well-disposed  Catholic  who  makes  the 
required  promises  on  his  or  her  side,  grant  the  dis- 
pensation, although  the  promises  are  refused  by  the 


154        DIRIMENT  IMPEDIMENTS 

non-Catholic  party ;  always  on  condition  that  there  is 
no  danger  of  perversion ;  for  when  such  danger  exists, 
the  dispensation  is  never  granted,  not  even  to  re- 
validate  a  marriage  already  contracted.  The  Catho- 
lic party  may,  for  very  serious  reasons,  be  left  in  good 
faith,  but  the  marriage  remains  null.  Thus,  a  decree 
of  the  Holy  Office  of  June  3,  1892,  granted  faculties 
to  the  Archbishop  of  Cincinnati  to  dispense,  in  the 
name  of  the  Holy  See,  in  the  case  of  a  Catholic 
woman  who  had  married  a  non-baptized  Protestant 
and  could  not  obtain  from  him  the  promise  that  the 
male  children  would  be  baptized  Catholics.  (A.  S. 
S.,  vol.  xxx,  p.  382.)  (6)  A  decree  of  April  6, 
1890,  published  June  21,  1912,  declares  that  dis- 
pensation from  this  impediment  is  never  granted 
by  one  having  faculties  from  the  Holy  See  unless  the 
promises  are  made  explicitly  (nunquam  concedi)  ; 
and  another  decree  published  the  same  day  adds  that 
if  the  promises  had  not  been  made  either  because  they 
had  not  been  exacted  or  because  they  had  been  re- 
fused, the  dispensation  and  subsequent  marriage 
would  certainly  be  null.  (A.  A.  S.,  July,  1912,  p. 
443;  Nouvelle  Revue  Theologique,  Jan.,  1913,  p.  9.) 
From  the  absoluteness  of  those  declarations,  some 
canonists  (De  Smet,  n.  291;  Besson  in  1ST.  R.  T., 
1.  c.,  p.  10)  concluded  that  a  Bishop  could  never 
"make  use  of  his  indult  in  favor  of  a  well-disposed 
Catholic  if  the  unbaptized  party  refused  to  observe 
the  conditions."  He  could  not  even  dispense  in  arti- 
culo  mortis  or  in  urgent  necessity  in  virtue  of  can. 
1043-1045.  Others,  however,  observed  that  previous 
decrees  had  been  very  absolute  also,  and  still  grave 


SACRED  ORDERS  155 

canonists  continued  to  maintain  that  there  might  be 
cases  in  which  a  Bishop  would  be  allowed  to  use  his 
indult  although  the  non-Catholic  party  had  not  made 
the  promises.  (Putzer,  n.  220.)  The  Holy  Office, 
in  answer  to  a  question  from  the  Archbishop  of  Cin- 
cinnati, stated  that  a  dispensation  granted  because  of 
urgent  necessity,  without  the  promises  from  the  non- 
Catholic  party,  was  valid,  and  that  the  indult  could 
be  used  in  that  case — potuisse  uti  facultatibus.  (A. 
S.  S.,  xxx,  p.  382.)  Special  faculties  have  been 
granted  to  some  Bishops  of  the  United  States,  allow- 
ing them  to  dispense,  on  certain  conditions,  from 
either  mixed  religion  or  disparity  of  worship,  with 
the  promises  from  the  Catholic  party  alone.  (Eccle- 
siastical Review,  March,  1915,  p.  355.) 

150.  Nota.  1.  Dispensation  from  the  impediment 
of  disparity  of  worship   implies   for  the   Catholic 
party  dispensation  from  all  the  relative  impediments, 
which  are  not  binding  on  the  unbaptized  and  from 
which  it  is  customary  for  the  Church  to  dispense. 

2.  The  rules  for  the  celebration  of  these  marriages 
are  the  same  as  for  mixed  marriages,  with  this  differ- 
ence, that  if  dispensation  had  not  been  obtained, 
even  passive  assistance  would  never  be  permitted, 
since  the  marriage  would  be  null. 

V.   SACRED  ORDERS 

Can.  1072.  Invalide  matrimonium  attentant  clerici 
in  sacris  ordinibus  constituti. 

151.  A  marriage  is  invalid  when  attempted 
by  clerics  in  Sacred  Orders. 


156         DIRIMENT  IMPEDIMENTS 

In  the  Latin  Church  the  Major  Orders  are  the 
priesthood,  the  diaconate,  and  the  subdiaconate, 
and  they  constitute  a  diriment  impediment  to  mar- 
riage, at  least  since  the  Second  Lateran  Council  in 
1139,  on  condition  that  they  have  been  received 
freely.  There  would  be  want  of  freedom  if  one  was 
forced  to  submit  to  ordination  and  also  if  Orders 
were  received  without,  at  least,  a  confused  knowledge 
of  the  obligations  they  impose.  The  ordination  in 
such  cases  might  be  valid,  but  the  cleric  thus  ordained 
would  not  be  bound  by  the  law  of  celibacy  unless  he 
would  freely  accept  it  afterwards,  "after  reaching  the 
age  of  sixteen,"  said  the  ancient  texts,  a  clause  which 
is  not  inserted  in  the  new  law.  (Can.  214.) 

This  impediment  is  of  ecclesiastical  origin,  and 
can  be  dispensed  from.  Dispensation  is  granted,  al- 
though rarely,  to  subdeacons  and  deacons ;  very  rarely ' 
to  priests  and  only  for  reasons  of  common  good;  as 
existed  after  the  English  Schism  (1554),  or  after  the 
French  Revolution  (1801).  There  have  been  a  few 
cases  of  Bishops  who  were  permitted  to  return  to  the 
lay  state,  but  there  seems  to  be  no  example  of  any  one 
being  dispensed  from  the  obligation  of  continency. 
(Tanquerey,  n.  1076.) 

VI.   SOLEMN  VOWS 

Can.  1073.  Item  invalide  matrimonium  attentant 
religiosi  qui  vota  sollemnia  profess!  sint,  aut  vota 
simplicia,  quibus  ex  special!  Sedis  Apostolicae  prae- 
scripto  vis  addita  sit  nuptias  irritandi. 

152.  Marriage  is  null  also  when  attempted 
by  Religious  who  have  taken  solemn  vows,  or 


SOLEMN  VOWS  157 

simple  vows  which  have  that  annulling  power 
by  special  disposition  of  the  Holy  See. 

The  diriment  power  of  the  public  vow  was  clearly 
and  formally  decreed  for  the  first  time  in  the 
Second  Lateran  Council,  held  in  1139.  (Wernz,  n. 
377;  Esmein,  vol.  i,  p.  274.)  By  "public  vow"  was 
then  understood  any  vow  taken  before  the  Church 
(in  conspectu  Ecclesia),  but  in  the  course  of  the 
twelfth  century  that  conception  was  modified  and 
only  those  vows  came  to  be  called  "public" — or, 
rather,  "solemn" — which  were  taken  in  a  religious 
profession.  That  distinction  was  officially  sanc- 
tioned in  a  decretal  of  Boniface  VIII,  who  declares 
that  "only  that  vow  is  to  be  considered  as  solemn  and 
diriment  of  marriage  contracted  hereafter,  which  is 
taken  solemnly  in  the  profession,  whether  express  or 
tacit,  made  in  one  of  the  Orders  approved  by  the  Holy 
See."  (Cap.  uni.  Ill,  15,  in  VI.)  In  the  days  of 
Boniface  VIII  all  the  Religious  Orders  approved  by 
the  Holy  See  were  Orders  strictly  so  called,  and  all 
religious  professions  were  solemn  professions.  It  is 
only  much  later  that  Congregations  with  simple  vows 
were  instituted.  Permission  was  first  given  to  schol- 
astics of  the  Society  of  Jesus  to  make  only  simple 
vows  or  a  simple  profession  before  they  were  admitted 
to  the  solemn  profession.  The  concession  was  ex- 
tended to  other  Orders,  and  many  of  the  modern  ones 
have  only  simple  vows,  particularly  Orders  of  women. 

Dispensation  from  this  impediment  is  regularly 
granted  only  by  the  Holy  See. 


158         DIRIMENT  IMPEDIMENTS 

VII.  ABDUCTION 
A.  Ancient  Discipline 

153.  In  the  Mosaic  legislation  there  is  no  special 
enactment  against  the  crime  of  abduction,  although 
we  can  not  doubt  that  it  was  severely  punished. 
(Deut.  xxii.,  22.)     The  ancient  Roman  law  dealt 
rather  leniently  with  it — the  abductor  was  allowed  to 
contract  marriage  with  the  abducted  if  she  was  will- 
ing.    Constantine,  under  the  influence,  no  doubt,  of 
Christian  ideas,  forbade  such  marriages ;  and  Justin- 
ian punished  abduction  with  death  and  the  confisca- 
tion of  property.     There  was  no  ecclesiastical  legisla- 
tion on  the  subject  during  the  first  three  centuries,  as 
St.  Basil  tells  us;  the  need  of  it  was  not  felt.     But 
when  in  the  fourth  and  fifth  centuries  disorders  mul- 
tiplied, the  Church  joined  her  efforts  to  those  of  the 
Christian  emperors  to  stamp  out  the  evil,  and  she 
pronounced  excommunication  against  abductors  with- 
out, however,  absolutely  forbidding  them  to  marry 
their  captives.     Among  the  Germanic  nations  the 
penalties  for  the  crime  of  abduction  had  nothing  of 
the  Roman  severity.     They  consisted  principally  in 
pecuniary  compensations  to  parents  or  guardians. 

154.  2.  With  the  fall  of  the  Roman  empire  be- 
gan that  period  of  violences  and  disorders  which 
lasted  for  several  centuries ;  it  was  then  found  neces- 
sary to  take  severe  measures  for  the  protection  of 
women  and  the  liberty  ef  the  marriage  contract. 
Hence,  in  some  particular  Councils  of  the  sixth  and 
following  centuries,  and  in  civil  legislations  as  well, 
do  we  find  very  stringent  laws  against  wife-captors. 


ABDUCTION  159 

It  is  only  in  the  ninth  century,  however,  that  abduc- 
tion becomes  clearly  an  impediment  to  marriage. 
Then,  in  some  places,  the  abductor  is  absolutely  for- 
bidden to  marry  the  abducted  woman,  or  even,  in 
certain  cases,  any  other  woman.  (C.  11,  c.  xxxvi, 
q.  2;  c.  34,  c.  xxvii,  q.  2.)  The  law  applied  to 
abduction  by  seduction  as  well  as  to  abduction  by 
violence,  and  the  impediment  was,  according  to  many, 
diriment. 

155.  3.  That  severity  was  due  to  the  special  cir- 
cumstances of  the  time;  as  soon  as  they  changed,  a 
reaction  set  in,  and  the  tendency,  always  existing  in 
the  Church,  to  favor  the  freedom  of  marriage,  again 
asserted  itself.  In  the  twelfth  century  the  principle 
that  marriage  is  constituted  by  the  consent  of  the 
parties  having  become  more  universally  recognized, 
the  opposition  of  the  parents  ceased  to  be  a  real  im- 
pediment and  consequently  also  abduction  by  seduc- 
tion. Furthermore,  Innocent  III  decreed  that  when- 
ever dissent  on  the  part  of  the  abducted  woman  would 
change  into  willingness,  the  marriage  could  take 
place,  even,  as  was  commonly  interpreted,  if  the 
woman  was  still  under  the  power  of  the  captor.  Thus 
abduction  by  violence  was  no  more  an  impediment 
so  long  as  the  abducted  party  consented  to  the  mar- 
riage and  there  remained  no  impediment  of  abduc- 
tion distinct  from  that  of  violence  or  fear.  The  law 
continued  unchanged  till  the  sixteenth  century,  but 
disorders  and  abuses  had  multiplied  again,  and  the 
Council  of  Trent  deemed  it  necessary  to  return  to 
the  severity  of  the  former  discipline.  (The  Catholic 
Encyclopedia,  Abduction.)  It  decreed,  therefore, 


160         DIRIMENT  IMPEDIMENTS 

that  "between  the  abductor  and  the  abducted  woman 
there  can  be  no  marriage  as  long  as  she  remains  in 
his  power." 

The  present  law  simply  renews  the  Tridentine  de- 
cree, completing  it  and  officially  sanctioning  some 
interpretations  given  of  it  by  canonists  or  by  Con- 
gregations. 

B.  Present  Discipline 

Can.  1074.  §  1.  Inter  virum  raptorem  et  muli- 
erem,  intuitu  matrimonii  raptam,  quandiu  ipsa  in 
potestate  raptoris  manserit,  nullum  potest  consistere 
matrimonium. 

§  2.  Quod  si  rapta,  a  raptore  separata  et  in  loco 
tuto  ac  libero  constituta,  ilium  in  virum  habere  con- 
senserit,  impedimentum  cessat. 

§  3.  Quod  ad  matrimonii  nullitatem  attinet,  rap- 
tui  par  habetur  violenta  retentio  mulieris,  cum 
nempe  vir  mulierem  in  loco  ubi  ea  commoratur  vel 
ad  quern  libere  accessit,  violenter  intuitu  matri- 
monii detinet. 

156.  §  1.  Between  the  abductor  and  the 
woman  abducted  with  a  view  to  marriage  there 
can  be  no  marriage  as  long  as  the  abducted  per- 
son is  in  the  abductor's  power. 

§  2.  If  the  abducted  woman,  having  been 
separated  from  the  abductor  and  restored  to  a 
place  of  safety,  consents  to  have  him  for  a  hus- 
band, the  impediment  ceases. 

§  3.  In  regard  to  the  nullity  of  marriage  we 
must  assimilate  to  abduction  the  violent  deten- 
tion of  a  woman,  when,  namely,  a  man  violently 


ABDUCTION  161 

detains  her,  with  a  view  to  marriage,  in  the 
place  where  she  resides  or  where  she  has  come 
of  her  own  accord. 

1.°    CONDITIONS   FOE   THE   IMPEDIMENT 

(a)  It  must  be  the  abduction  of  a  woman  by  a 
man.  The  words  vir  and  mulier  used  in  the  text  re- 
move all  possible  doubt  on  that  point,  whatever  may 
have  been  the  opinion  of  some  canonists  in  the  past. 
It  does  not  matter  who  the  woman  is,  or  what  is  her 
character. 

(6)  The  abduction  must  be  by  violence,  not  simply 
by  seduction.  The  words  raptus,  raptor  imply  the 
idea  of  violence.  When  the  legislator  speaks  of  "de- 
tention," which  is  equivalent  to  "abduction,"  he  uses 
the  qualificative,  "violent" ;  if  it  is  not  used  with 
raptus  it  is  that  there  was  no  need  of  it.  This  was 
the  interpretation  of  the  law  of  Trent.  The  violence 
may  be  physical — carrying  off  a  person  by  force ;  or 
moral — using  threats  and  fear.  Fraud  and  deceit 
are  also  admitted  to  suffice,  because  it  is  always  true 
that  the  woman  has  been  taken  away  against  her  will. 

157.  (c)  For  abduction  properly  so  called  the 
person  should  be  removed  from  one  place  to  another ; 
and  this  was  generally  considered  as  an  essential  con- 
dition for  the  impediment,  but  the  present  law  ex- 
tends somewhat  that  of  Trent  and  assimilates  to  ab- 
duction the  violent  detention  of  a  woman  in  the  place 
of  her  residence  or  in  a  place  where  she  came  freely. 
Here  we  have  no  removal  or  no  violent  removal  from 
one  place  to  another.  It  suffices,  then,  that  the  woman 
be  in  the  power  of  the  abductor,  detained  by 


362         DIRIMENT  IMPEDIMENTS 

against  hei  will  in  a  place  which  is  not  safe  for  her. 
The  interpretation  of  that  condition,  removal  from 
one  place  to  another,  had  given  rise  to  many  difficul- 
ties for  which  there  will  be  no  occasion  any  more. 

(d)  The  abduction  or  detention  must  be  for  the 
purpose  of  marriage.     That  condition  had  not  been 
explicitly  formulated  by  the  Council  of  Trent,  but 
it  was  always  understood  by  canonists  and  Congre- 
gations.    Now  it  is  required  expressly  by  the  law. 

(e)  The  impediment  continues  as  long  as  the  ab- 
ducted woman  remains  in  the  abductor's  power,  even 
if  she  would  freely  consent  to  marry  him,  and  in  this 
the  impediment  of  abduction  differs  from  that  of 
fear.     It  ceases  when  the  woman  is  separated  from 
the  abductor  and  restored  to  a  place  of  safety.     It  is 
not  enough  that  she  should  be  able  to  go  away;  she 
must  really  be  separated  from  him  and  no  more  under 
his  influence  or  that  of  his  friends.       (Gasparri,  n. 
559.) 

2.°  EXTENT  OF  THE  IMPEDIMENT 

158.  The   impediment   of   abduction   as   distinct 
from  that  of  fear,  is  one  of  the  ecclesiastical  law,  and 
consequently  it  does  not  affect  infidels  directly,  but 
only  indirectly  when  they  contract  marriage  with 
Christians.     There  will,  in  this  case,  be  an  impedi- 
ment whether  the  baptized  party  was  abductor  or  ab- 
ducted, according  to  the  common  interpretation. 

3.°    DISPENSATION   FROM   THE   IMPEDIMENT 

159.  The  Church  can  dispense  from  this  impedi- 
ment and  allow  the  woman  to  marry  the  abductor  if 


CRIME  163 

she  wishes ,  but  the  Holy  See  rarely  does  so  and  still 
more  rarely  does  it  delegate  the  power  to  do  so.  Even 
more,  when  faculties  are  granted  to  dispense  from 
another  impediment,  the  clause  is  often  added,  "pro- 
vided that  the  woman  was  not  abducted  for  the  pur- 
pose of  marriage."  If  the  woman  had  been  ab- 
ducted, the  faculties  could  not  be  used,  even  though 
the  woman  would,  at  the  time,  have  been  restored  to 
a  place  of  safety  so  that  there  would  be  no  more  im- 
pediment of  abduction.  (Gasparri,  n.  561.)  In 
those  cases  the  circumstance  of  abduction  should  be 
mentioned  in  the  petition  for  dispensation 

Abductors  incur  excommunication.     (De  delictis, 
can.  2353.) 

VIII.   CRIME 
A.  Origin  of  the  Impediment 

160.  It  has  always  been  felt  that  there  was  some- 
thing unbecoming  in  an  adulterer  marrying  his 
accomplice,  or  a  murderer  marrying  the  wife  of  his 
victim.  Such  crimes  call  for  punishment,  and  the  hope 
of  marriage  should  not  be  an  incitement  to  sin.  The 
Roman  law  under  Augustus  forbade  the  woman  con 
victed  of  adultery  ever  to  contract  marriage  with  any 
person  whatsoever.  Under  Justinian  those  mar 
riages  were  declared  null.  An  ancient  canon  as- 
cribed in  the  Decretum  to  St.  Gregory  the  Great  con- 
tains the  same  prohibition  (c.  22,  c.  xxxii,  q.  7)  ; 
but  other  canons  inserted  likewise  by  Gratian  in  his 
"Decree"  (c  xxxi,  q.  1)  forbid  marriage  only  be- 
tween the  adulterer  and  his  accomplice  or  even  for- 


164         DIRIMENT  IMPEDIMENTS 

bid  it  only  until  proper  penance  has  been  done. 
Simple  adultery,  then,  does  not  seem  ever  to  have 
been  a  canonical  diriment  impediment,  and  at  the 
end  of  the  ninth  century  it  had  ceased  to  be  a  pro- 
hibitory one.  It  was  different  when  to  adultery  was 
added  another  crime.  A  Council  of  Meaux  in  845 
decrees  that  an  adulterer  can  not  contract  mar- 
riage with  his  accomplice  if  either  of  them  had  any 
part  in  the  death  of  the  first  husband.  This  is  sub- 
stantially the  impediment  of  adultery  with  conjugi- 
cide, only  its  conditions  are  not  clearly  defined  as 
yet,  and  they  remain  undefined  for  some  time.  The 
Council  of  Tribur  in  895  strongly  condemns  and 
apparently  annuls  a  marriage  contracted  after  adul- 
tery with  a  promise  to  marry.  The  decree  of  Gratian 
mentions  that  impediment  also.  Thus  two  kinds  of 
impediments  of  crime  were  already  admitted — one 
resulting  from  adultery  with  conjugicide;  the  other 
from  adultery  with  a  promise  of,  or  an  attempt  at, 
marriage.  Celestine  III  (1191-1198)  established  a 
third  one — the  impediment  arising  from  conjugicide 
alone.  The  conditions  for  incurring  those  impedi- 
ments were  determined  with  greater  precision  as  time 
went  on,  but  the  legislation  on  that  point  has  re- 
mained substantially  the  same  from  the  twelfth  cen- 
tury to  the  present  day. 

B.  Present  Discipline 

Can.  1075.  Valide  contrahere  nequeunt  matri- 
monium : 

1.°  Qui,  perdurante  eodem  legit imo  matrimonio, 
adulterium  inter  se  consummarunt  et  fidem  sibi  mu- 
tuo  dederunt  de  matrimonio  ineundo  vel  ipsum 


CRIME  165 

matrimonium,  etiam  per  civilem  tantum  actum,  at 
tentarunt; 

2.°  Qui,  perdurante  pariter  eodem  legitimo  matri- 
monio,  adulterium  inter  se  consummarunt  eorum- 
que  alter  conjugicidium  patravit; 

3.°  Qui  mutua  opera  physica  vel  morali.  etiam 
sine  adulterio,  mortem  conjugi  intulerunt. 

161.  §  1.  There  can  be  no  valid  marriage  be- 
tween : 

1.°  Those  who  during  the  same  legitimate 
marriage  have  committed  adultery  and  prom- 
ised marriage  to  one  another  or  attempted  it, 
even  by  a  merely  civil  act. 

2.°  Those  who  during  the  same  legitimate 
marriage  have  committed  adultery  together, 
and  one  of  them  conjugicide. 

3.°  Those  who  by  mutual  co-operation,  phys- 
ical or  moral,  even  without  adultery,  have 
caused  the  death  of  a  partner. 

1.°   CONDITIONS  FOB  THE  IMPEDIMENT 

(a)  The  impediment  of  crime  arises,  in  the  first 
place,  from  adultery  with  a  promise  of,  or  an  attempt 
at,  marriage.  The  adultery  must,  as  before,  be  real, 
not  merely  putative,  consummated,  and,  according  to 
the  common  interpretation,  formal  on  the  part  of 
both  accomplices.  By  an  attempted  marriage  is  un- 
derstood one  invalidly  contracted  "by  words  express 
ing  consent  or  by  some  other  sign  involving  a  promise 
of  consent"  (S.  C.  de  P.  F.,  Jan.  14,  1844.)  Con- 
cubinage is  not  considered  as  an  attempted  marriage, 
but  civil  marriage  is,  according  to  a  decree  of  the 


166         DIRIMENT  IMPEDIMENTS 

S.  Congregation  of  the  Sacraments,  June  3,  1912, 
and  the  present  law.  (A.  A.  S.,  iv,  p.  403.)  (fc) 
The  impediment  arises  also  from  adultery  with  con- 
jugicide,  and  (c)  from  conjugicide  alone  when  the 
death  results  from  the  effective  co-operation,  physi- 
cal or  moral,  of  the  two  parties. 

2.°  BY  WHOM  IS  THE  IMPEDIMENT  INCUBRED? 

162.  The  impediment  does  not  affect  the  unbap- 
tized  except  when  they  contract  marriage  with  the 
baptized  who  on  their  side  have  incurred  it.     There 
is  nothing  in  the  law  implying  that  ignorance  ever 
excuses  from  the  impediment  of  crime. 

3.°    DISPENSATION    FROM    THE    IMPEDIMENT 

163.  (a)  The  Holy  See  dispenses  and  grants  to 
Bishops  power  to  dispense  from  the  impediment  of 
crime  without  much  difficulty,  except  when  it  arises 
from  conjugicide,  in  which  case  a  very  serious  rea- 
son is  required,  particularly  if  the  conjugicide  is 
publicly  known. 

IX.  CONSANGUINITY 

I.    GENERAL  NOTIONS 

1.  NATUBE  OF  CONSANGUINITY  OB  BLOOD  EELATION- 

SHIP 

164.  Relationship    is   of   three   kinds — blood  re- 
lationship or  consanguinity,  spiritual  relationship, 
and  legal  relationship. 


CONSANGUINITY  167 

Consanguinity  is  the  bond  that  unites  persons  of 
the  same  blood,  i.e.,  persons  who  descend  from  one 
common  stock  or  one  from  the  other  within  certain 
limits.  The  stipes,  stock,  is  the  person  from  whom 
the  related  parties  descend;  the  line  is  the  series  of 
persons  who  come  from  the  same  stock.  It  is  direct 
when  the  persons  descend  one  from  the  other;  it  is 
called  collateral,  transversal,  oblique,  when  the  per- 
sons descend,  not  one  from  the  other,  but  all  from 
one  common  stock — two  cousins  are  related  in  the 
collateral  line.  In  that  case  there  are  two  series  of 
persons,  one  on  each  side  of  the  common  stock.  If 
James  and  John  are  second  cousins,  there  is  a  series 
of  persons  or  line  connecting  James,  and  another 
connecting  John  with  their  great-grandfather,  who  is 
the  common  stock.  The  lines  may  be  equal  or  un- 
equal. 

The  degree  is  the  measure  of  the  distance  between 
the  persons  who  are  related  to  one  another. 

2.     DETERMINATION   AND   MULTIPLICATION   OF   BLOOD 
RELATIONSHIPS 

Lib.  II,  De  Personis,  Can.  96.  §  i.  Consangui- 
nitas  computatur  per  lineas  et  gradus. 

§  2.  In  linea  recta,  tot  sunt  gradus  quot  gencra- 
tiones,  seu  quot  personae,  stipite  dempto. 

§  3.  In  linea  obliqua,  si  tractus  uterque  sit  aequ- 
alis,  tot  sunt  gradus  quot  generationes  in  uno  tractu 
lineae:  si  duo  tractus  sint  inaequales,  tot  gradus 
quot  generationes  in  tractu  longiore. 

165.  §  1.  Consanguinity  is  computed  by  lines 
and  degrees. 


168         DIRIMENT  IMPEDIMENTS 

$  2.  In  the  direct  line  there  are  as  many  de- 
grees as  there  are  generations,  or  as  there  are 
persons,  not  counting  the  common  stock. 

§  3.  In  the  collateral  line,  if  both  sides  of 
the  line  are  equal,  there  are  as  many  degrees 
as  there  are  generations  on  one  side;  if  they 
are  unequal  there  are  as  many  degrees  as  there 
are  generations  on  the  longer  side. 

(a)  Determination  of  relationships.  To  define  a 
relationship  it  is  necessary  to  state  whether  it  is  in 
the  direct  or  oblique  line,  simple  or  multiplex,  and  in 
what  degree.  The  degree  is  determined  by  the  num- 
ber of  generations  or  of  persons  forming  the  line. 
In  the  direct  line  there  are  as  many  degrees  as  there 
are  persons,  not  including  the  common  stock,  or  as 
many  degrees  as  there  are  generations — grandfather 
and  grandchild  are  in  the  second  degree. 

In  the  collateral  line,  according  to  the  way  of 
reckoning  of  the  Eoman  law,  of  modern  civil  law, 
and  also  of  the  Eastern  Church,  there  are  as  many 
degrees  as  there  are  generations,  or  as  there  are  per- 
sons, on  both  sides  of  the  line,  the  common  stock  not 
included — thus,  second  cousins  would  be  in  the  sixth 
degree. 

According  to  the  Teutonic  way  of  reckoning, 
adopted  by  the  canon  law  of  the  Latin  Church,  there 
are  as  many  degrees  as  there  are  generations  on  one 
side,  or  as  there  are  generations  between  one  of  the 
parties  and  the  common  stock,  or  as  there  are  persons 
on  one  side  of  the  line,  not  including  the  common 
stock;  and  if  the  two  sides  of  the  line  are  unequal 
it  is  the  longer  one  which  determines  the  distance  of 


CONSANGUINITY  169 

relationship.  However,  in  those  cases  the  Roman 
Curia  usually  demands  that  the  distance  on  either 
side  be  indicated.  Thus,  between  uncle  and  niece 
the  distance  is  of  two  degrees  on  one  side  and  one  on 
the  other;  this  is  expressed  by  stating  that  they  are 
in  the  second  degree  of  the  collateral  line  mixed  with 
the  first  or  joining  the  first,  iangente  primum. 

166.  (&)  Multiplication  of  relationships.     When- 
ever two  persons  descend  from  several  common  stocks, 
there  are  between  them  several  relationships,  they 
derive  common  blood  from  several  sources.     Under 
the  former  law,  even  when  there  was  only  one  com- 
mon stock  there  were  several  relationships  if  the 
parties  were  connected  with  it  in  several  ways,  or 
through  different  lines — the  common  blood  reaching 
the  parties  through  several  channels.        This  may 
happen  when  parties  have  contracted  marriage  with 
relations,  or  when  a  person  would  marry  successively 
two  parties  related  among  themselves,  or  when  two 
parties  related  among  themselves  marry  parties  who 
on  their  side  are  related  among  themselves.       The 
children  in  those  cases  are  liable  to  be  connected  in 
several  ways  to  the  same  persons.   Under  the  present 
law  there  are  several  relationships  only  when  there 
are  several  common  stocks. 

II.    THE  IMPEDIMENT 
A.  Ancient  Discipline 

167.  The  Mosaic  law  commanded  Israelites  to 
marry  within  their  own  tribe  and  kindred   (Num. 
xxxvi.,   7,   8) ;   at  the  same  time   it  forbade   any 


170        DIRIMENT  IMPEDIMENTS 

man  to  "approach  her  that  is  near  of  kin  to  him," 
and  specified  that  marriage  is  prohibited  between 
parents  or  grandparents  and  their  children  or  grand- 
children, between  brothers  and  sisters,  aunts  and 
nephews  (Lev.  xviii,  6-20).  Nothing  is  added  to 
that  legislation  in  the  New  Testament.  The  ancient 
Eoman  law  seems  to  have  forbidden  marriage  be- 
tween relatives  generally,  but  this  was  too  severe  and 
did  not  last  long.  Under  the  emperors,  marriage  was 
forbidden  in  the  direct  line  indefinitely  and  in  the 
collateral  line  to  the  third  degree  according  to  the 
Roman  way  of  reckoning,  i.e.,  between  brothers  and 
sisters,  nephews  and  aunts,  but  not  between  first 
cousins. 

The  Church,  growing  up  in  the  Roman  empire, 
accepted  the  provisions  of  the  Mosaic  and  Roman 
laws  without  adding  any  prescriptions  of  her  own  for 
a  long  time.  It  is  only  in  the  fourth  and  fifth  cen- 
turies that  we  find  indications  of  an  independent  can- 
onical legislation.  Christian  sentiment,  however, 
was  against  marriages  between  near  relatives,  and  the 
tendency  grew  stronger  and  stronger  to  apply  more 
severely  the  prohibitions  of  Leviticus.  St.  Augus- 
tine saw  in  this  a  means  of  fostering  a  spirit  of  char- 
ity and  multiplying  the  bonds  of  friendship. 

168.  After  the  fall  of  the  Western  empire  the 
Councils  took  the  matter  in  hand  more  and  more. 
In  the  sixth  century  they  _extended  the  impediment 
of  consanguinity  to  the  sixth  degree  according  to  the 
Roman  way  of  reckoning.  (Clermont,  535,  c.  10). 
Some  time  after,  it  was  extended  to  the  seventh,  be- 
cause Leviticus  forbids  marriage  between  relations, 


CONSANGUINITY  171 

and  relationship  in  Roman  law,  when  it  is  question 
of  successions,  extends  to  the  seventh  degree.  (Rome, 
721,  c.  8,  9.)  In.  the  course  of  the  eighth  and  ninth 
centuries,  the  Church,  brought  into  close  contact  with 
the  Germanic  races,  adopted  their  way  of  counting 
the  impediments.  About  the  same  time,  under  the 
influence  of  circumstances  which  are  imperfectly 
known,  custom  and  popular  practice  extended  the  im- 
pediment to  the  seventh  degree  according  to  the  Ger- 
manic way  of  counting,  which  would  be  the  four- 
teenth according  to  the  Roman  way.  That  discipline 
was  not  introduced  without  difficulty  nor  did  it  meet 
everywhere  with  the  same  success,  but  in  the  begin- 
ning of  the  twelfth  century  it  is  spoken  of  as  the 
common  law.  Probably  the  impediment  was  not  a 
diriment  one  to  the  remotest  degree,  but  even  so  it 
extended  too  far;  and  the  Lateran  Council,  in  1215, 
limited  it  to  the  fourth  degree  in  the  collateral  line. 
The  Lateran  law  remained  in  force  to  our  own  times. 
Several  of  the  Fathers  at  the  Council  of  Trent  asked 
that  the  impediment  be  reduced  to  the  third  degree ; 
the  same  desire  was  expressed  in  the  Vatican  Council 
without  any  change  being  obtained.  Dispensations 
from  the  fourth  and  third  degree  had  become  very 
frequent  and  it  was  felt  that  there  was  not,  at  the 
present  time,  the  same  social  reason  for  the  impedi- 
ment as  existed  in  the  Middle  Ages,  when  communi- 
cations were  so  difficult  and  relations  so  limited; 
hence  it  has  been  decided  to  reduce  it  to  the  third 
degree. 


172         DIRIMENT  IMPEDIMENTS 

B.    Present  Discipline 

Can.  1076.  §  1.  In  linea  recta  consanguinitatis 
matrimonium  irritum  est  inter  omnes  ascendentes  et 
descendentes  turn  legitimos  turn  naturales. 

§  2.  In  linea  collateral!  irritum  est  usque  ad  ter- 
tium  gradum  inclusive,  ita  tamen  ut  matrimonii 
impedimentum  toties  tantum  multiplicetur  quoties 
communis  stipes  multiplicatur. 

§  3.  Nunquam  matrimonium  permittatur,  si  quod 
subsit  dubium  num  partes  sint  consanguineae  in 
aliquo  gradu  lineae  rectae  aut  in  primo  gradu  lineae 
collateralis. 

169.  §  1.  In  the  direct  line  consanguinity  in- 
validates marriage  between  all  ascendants  and 
descendants,  whether  legitimate  or  natural. 

§  2.  In  the  collateral  line  marriage  is  invalid 
to  the  third  degree  inclusively,  but  the  impedi- 
ment is  multiplied  only  with  the  multiplication 
of  the  common  stock. 

§  3.  Marriage  shall  never  be  permitted  when 
there  is  a  doubt  that  the  parties  are  related  in 
some  degree  of  the  direct  line  or  in  the  first 
degree  of  the  collateral  line. 

1.°    EXTENT  OF  THE  IMPEDIMENT 

In  the  direct  line  marriage  remains  forbidden  in 
all  degrees  of  relationship,,  and  this  by  the  natural 
law  itself — at  least  more  probably.  In  the  collateral 
line  the  impediment  extends  only  to  the  third  degree, 
to  second  cousins — not  to  third  cousins,  as  it  did 
before.  We  are  thus  going  back  to  the  discipline  of 


CONSANGUINITY  173 

the  early  Church.  The  legislation  which  reached  the 
highest  point  of  severity  in  the  twelfth  century  has 
gradually  become  more  lenient. 

2.°    DISPENSATION   FROM   THE  IMPEDIMENT 

170.  Dispensation  may  be  obtained  from  the  third 
and  second  degree  in  the  collateral  line,  or  the 
second  mixed  with  the  first,  between  first  cousins  or 
between  uncle  and  niece.  The  first  degree  in  the 
direct  line  is  certainly,  the  others  are  probably,  im- 
pediments of  the  natural  law,  as  well  as  the  first  de- 
gree in  the  collateral  line;  and  for  that  reason  the 
Church  never  gives  a  dispensation  from  those  im- 
pediments. 

If  a  marriage  had  been  contracted  with  such  an 
impediment — v.g.,  between  brother  and  sister,  as  may 
happen  among  pagans  or  in  cases  of  illegitimate  re- 
lationship— it  is  probable  that  the  marriage  could 
not  be  revalidated ;  but  it  would  also  be  probable  that, 
if  both  parties  are  unbaptized,  it  is  valid ;  and,  there- 
fore, no  other  marriage  is  permissible.  In  practice, 
if  the  impediment  is  public,  the  parties  ought  to  be 
separated,  at  least  to  avoid  scandal.  In  any  case,  to 
permit  them  to  remain  together  it  would  be  necessary 
to  refer  the  matter  to  Rome;  and  likewise  to  allow 
a  new  marriage,  unless  the  former  one  had  been  dis- 
solved by  the  application  of  the  Pauline  Privilege  or 
by  Papal  dispensation. 

What  has  been  said  suffices  to  show  how  far  un- 
baptized persons  are  bound  by  the  impediment  of 
consanguinity.  Civil  codes  have  the  same  impedi- 


174        DIRIMENT  IMPEDIMENTS 

ment,  but  usually  it  does  not  go  beyond  the  third 
Koman  degree. 

X.   AFFINITY 
A.   Former  Discipline 

171.  (a)  The  law  of  Moses  prohibited  marriage 
between  a  man  and  his  daughter  or  grand-daughter- 
in-law,  between  a  man  and  his  deceased  brother's 
widow  or  the  widow  of  his  father's  brother.  (Lev. 
xviii,  8-18;  xx.  20.)  Under  the  Koman  law,  affinity 
was  an  impediment  only  in  the  direct  line,  and, 
moreover,  it  arose  not  from  carnal  intercourse  but 
from  marriage  as  such.  (Wernz,  n.  429;  Esmein, 
v.  i.,  p.  375.) 

(6)  There  is  no  record  of  any  ecclesiastical  legis- 
lation on  this  point  during  the  first  centuries.  The 
Church  conformed  to  the  civil  prescriptions  and  also 
probably  to  those  of  the  Mosaic  law,  because  they 
were  in  conformity  with  the  demands  of  the  natural 
law.  When  St.  Basil  the  Great  forbade  a  man  to 
marry  the  sister  of  his  deceased  wife,  to  those  who 
objected  to  his  ruling  he  answered  that  this  had 
always  been  the  law  at  Ceesarea.  Several  particular 
Councils  successively  sanctioned  that  law.  In  the 
sixth  and  seventh  centuries  the  impediment  of  affinity 
began  to  extend  beyond  the  Mosaic  regulations;  but 
so  far  it  continued  to  arise  as  in  the  Roman  law  from 
true  marriage  as  such.  Oniy  about  the  eighth  cen- 
turies did  affinity  come  to  be  looked  upon  as  the 
result  of  carnal  intercourse,  licit  or  illicit,  on  the 
principle  laid  down  by  St  Augustine  and  by  St.  Paul 


AFFINITY  175 

himself  (1  Cor.  vi,  16)  that  sexual  relations  make 
parties  one  flesh.  Then,  following  the  same  develop- 
ment as  that  of  consanguinity,  the  impediment  of 
affinity  was  extended  by  custom  as  far  as  the  seventh 
degree. 

172.  (c)  Moreover,  to  the  affinity  which  exists  be- 
tween a  person  and  the  blood  relations  of  the  one 
with  whom  he  or  she  had  intercourse,  was  added  a 
second  kind  which  existed  between  one  party  and  the 
relations  by  marriage  of  the  other ;  and  a  third  kind 
existing  between  the  blood  relations  of  one  of  the 
parties  and  the  blood  relations  of  the  other ;  and  even 
a  fourth  kind  existing  between  the  kin  of  a  first  hus- 
band and  the  children  born  of  a. second  marriage. 
The  Fourth  Later  an  Council  (c.  50 ;  c.  8,  x,  tit.  xiv.) 
maintained  only  the  first  kind  of  affinity  as  defined 
above,  and  reduced  it  to  the  fourth  degree,  at  least 
in  the  collateral  line,  without  making  any  distinction 
between  licit  and  illicit  affinity. 

(d)  The  Council  of  Trent  further  reduced  the  im- 
pediment of  illicit  affinity  to  the  second  degree  in  the 
collateral  line;  in  the  direct  line,  affinity,  whether 
licit  or  illicit,  continued  to  extend  to  the  fourth  de- 
gree and,  some  say,  indefinitely.  There  was  no  more 
change  in  the  legislation  down  to  the  present  day. 
In  the  Vatican  Council  some  Bishops  asked  that  the 
impediment  of  illicit  affinity  be  abolished  altogether, 
and  that  of  licit  affinity  be  limited  to  the  first  degree. 
Others  asked  only  that  one  be  limited  to  the  first,  the 
other  to  the  second  or  third.  Those  desires  are  now 
satisfied,  at  least  in  part. 


176         DIRIMENT  IMPEDIMENTS 
B.  Present  Discipline 

I.    NATUEE   OF   THE   IMPEDIMENT 

173.  As  for  consanguinity,  it  is  in  the  introduc- 
tory canons  of  the  second  book,  De  Personis,  that  we 
find  the  definition  of  affinity  and  the  rules  for  its 
determination. 

Can.  97.  §  1.  Affinitas  oritur  ex  matrimonio  va- 
lido  sive  rato  tantum  sive  rato  et  consummato. 

§  2.  Viget  inter  virum  dumtaxat  et  consangui- 
neos  mulieris,  itemque  mulierem  inter  et  viri  con- 
sanguineos. 

§  3.  Ita  computatur  ut  qui  sunt  consanguine! 
viri,  iidem  in  eadem  linea  et  gradu  sunt  affines  mu- 
lieris, et  vice  versa. 

174.  §  1.  Affinity  arises  from  valid  marriage, 
whether  ratified  only  or  ratified  and  consum- 
mated. 

§  2.  It  exists  only  between  the  man  and  the 
blood  relations  of  the  woman,  and  likewise  be- 
tween the  woman  and  the  blood  relations  of  the 
man. 

§  3.  It  is  reckoned  in  this  wise  that  the  blood 
relations  of  the  man  are  related  to  the  woman 
by  affinity  in  the  same  line  and  the  same  degree, 
and  vice  versa. 

1.  The  present  law  brings  back  the  original  con- 
ception of  affinity,  for  which  only  valid  marriage 
was  considered,  not  carnal  relations.  Henceforth 
affinity  will  be  produced  by  every  marriage  provided 
jt  be  valid,  even  though  not  consummated;  but  it  is 


AFFINITY  177 

not  produced  by  any  carnal  relations  outside  of  mar- 
riage and  there  will  be  no  question  any  more  of  illicit 
affinity. 

2.  As  has  been  the  case  since  the  Lateran  Council, 
there  is  only  one  form  of  affinity,  and  the  principle 
still  holds:  Affinitas  non  parit  affinitatem.     It  does 
not  exist,  for  example,  between  the  brother  of  the 
wife  and  the  sister  of  the  husband. 

3.  The  husband  and  wife  are  considered  as  one 
flesh,  so  that  the  relations  of  the  husband  are  related 
by  affinity  to  his  wife  in  the  same  manner  as  they 
are  related  to  him  by  blood. 

H.    EXTENT   AND   MULTIPLICATION   OP   THE   IMPEDI- 
MENT 

Can.  1077.  §  1.  Affinitas  in  linea  recta  dirimit 
matrimonium  in  quolibet  gradu;  in  linea  collateral! 
usque  ad  secundum  gradum  inclusive. 

§  2.  Affinitatis  impedimentum  multiplicatur: 

1.°  Quoties  multiplicatur  impedimentum  consan- 
guinitatis  a  quo  procedit ; 

2.°  Iterate  successive  matrimonio  cum  consangui- 
neo  conjugis  defuncti. 

175.  §  1.  Affinity  in  the  direct  line  annuls 
marriage  in  any  degree;  in  the  collateral  line 
it  annuls  it  to  the  second  degree  inclusively. 

§  2.  The  impediment  of  affinity  is  multiplied : 

1.°  Whenever  the  impediment  of  consanguin- 
ity from  which  it  proceeds  is  multiplied. 

2.°  By  successive  marriages  with  blood  rela- 
tions of  the  deceased  spouse. 


178         DIRIMENT  IMPEDIMENTS 

1.  It  is  now  certain  that  affinity  invalidates  mar- 
riage in  all  the  degrees  of  the  direct  line ;  in  the  col- 
lateral line  it  invalidates  in  the  first  and  second  de- 
grees, not  in  the  third  or  fourth,  as  was  the  case  up 
to  the  present. 

2.  There  are  only  two  causes  of  multiplication  of 
affinity  under  the  present  discipline : 

(a)  Multiplication  of  relationship ;  thus  when  the 
husband  is  related  by  blood  in  two  ways  to  a  certain 
person,  the  wife  is  related  by  affinity  to  that  same 
person  in  two  ways  also. 

(6)  Successive  marriages;  if  a  man  married  suc- 
cessively two  sisters  he  would  contract  a  twofold  im- 
pediment of  affinity  with  a  third  sister. 

IH.  DISPENSATION  FEOM  THE  IMPEDIMENT 

176.  Under  the  former  legislation  dispensation 
from  the  impediment  of  affinity  was  usually  not 
granted  in  the  first  degree  of  the  direct  legitimate 
line.  Some  canonists  even  maintained  that  dispen- 
sation could  not  be  granted  in  that  degree ;  in  reality 
it  was  granted,  very  rarely,  but  still  a  few  times. 
(S.  Poen.,  Dec.,  1911 ;  N.  R.  T.,  1912,  p.  528.)  This 
is  sufficient  to  prove  that  the  impediment  of  affinity 
is  purely  ecclesastical  in  all  its  forms  and  degrees, 
and  therefore  not  binding  on  the  unbaptized ;  at  least 
as  long  as  they  remain  unbaptized,  for  if  they  become 
Christians  they  have  the  impediment.  The  same 
principles  hold  under  the  new  law. 


PUBLIC  DECENCY  179 

XL  PUBLIC  DECENCY 
A.  Former  Discipline 

177.  The  Roman  law  forbade  the  son  to  marry  the 
betrothed  of  his  father,  and  the  father  to  marry  the 
betrothed  of  his  son.  Still,  it  is  doubtful  if  we  have 
to  look  here  for  the  origin  of  the  canonical  impedi- 
ment. Its  sources  are  obscure  and  difficult  to  trace. 
It  is  unknown  to  writers  of  the  ninth  century  like 
Hinkmar  of  Eheims  and  Benedict  the  Levite. 
(Wernz,  n.  48;  Esmein,  vol.  i,  p.  146.)  It  is  posi- 
tively rejected  by  the  author  of  a  decretal  ascribed 
to  Pope  Benedict.  (C.  18,  c.  xxvii;  q.  2.)  Other 
texts,  on  the  contrary,  which  are  inserted  in  the 
Decretum  and  ascribed,  some  to  St.  Gregory  the 
Great,  others  to  a  Council  of  Rome  (c.  11,  14,  15 ;  c. 
xxvii,  q.  2),  clearly  show  the  existence  of  the  impedi- 
ment at  the  time  the  decree  was  compiled;  for,  al- 
though their  origin  be  uncertain,  they  represent  the 
discipline  of  the  Church  in  the  eleventh  and  the 
twelfth  century. 

At  first,  the  impediment  of  public  decency  was  not 
clearly  distinguished  from  that  of  affinity.  It  was 
recognized  that  the  union  existing  between  husband 
and  wife  establishes  such  close  relations  between  the 
husband  and  his  wife's  kin  that  it  seemed  unbecom- 
ing and  dangerous  for  morality  to  permit  marriage 
between  them.  But  for  some  that  union  was  com- 
plete only  when  the  mai-riage  was  consummated ;  for 
others  it  existed  substantially  as  soon  as  the  marriage 
was  contracted ;  and  for  others,  again,  the  contract  of 
betrothment,  which  was  then  generally  celebrated 


180         DIRIMENT  IMPEDIMENTS 

with  so  much  solemnity,  had  almost  the  same  effects 
as  marriage  itself. 

When  it  was  settled  that  affinity  was  produced  by 
the  consummation  of  marriage  or  carnal  intercourse, 
public  decency  could  become  a  distinct  impediment, 
arising  from  the  contract  of  marriage  or  of  betroth- 
ment  as  such.  Its  foundation  was  the  union  of 
wills  implied  in  the  mutual  consent  which  made  the 
parties  morally  one  and  hence  bound  each  one  to  the 
blood  relations  of  the  other,  thus  making  marriage 
between  them  unbecoming.  This  development  in 
the  theory  of  the  impediment  was  reached  in  the 
twelfth  century.  It  remained  to  define  its  conditions 
and  extent. 

Some  texts  would  seem  to  imply  that  it  existed 
between  the  husband  and  all  the  blood  relations  of  the 
wife  and  vice  versa;  and  that  it  admitted  of  the 
same  forms  as  affinity  itself.  The  Fourth  Lateran 
Council  limited  it  in  the  same  manner  as  affinity. 
The  Council  of  Lyons,  in  1274,  threatened  to  go 
further  and  even  to  suppress  the  impediment  alto- 
gether. 

The  question  came  up  again  in  the  Council  of 
Trent.  Boniface  VIII  had  decreed  that  the  impedi- 
ment would  not  arise  from  betrothals  that  would  be 
uncertain,  conditional,  or  null  for  want  of  consent. 
(C.  unicum,  in  Sexto,  IV,  1.)  The  Council  decided 
that  invalid  betrothment,  whatever  the  reason  for  the 
nullity,  would  not  produce  the  impediment,  and  that 
from  valid  betrothment  would  arise  an  impediment 
only  in  the  first  degree.  The  impediment  arising 
from  ratified  marriage  continued  to  extend  to  the 


PUBLIC  DECENCY  181 

fourth  degree,  and  it  continued  also  to  be  produced 
by  invalid  marriage  as  long  as  the  nullity  was  not 
due  to  want  of  consent. 

The  change  introduced  by  the  new  law  in  the  con- 
cept of  affinity  implied  a  change  also  in  the  concept 
of  public  decency. 

B.   Present  Discipline 

Can.  1078.  Impedimentum  publicae  honestatis 
oritur  ex  matrimonio  invalido,  sive  consummate 
sive  non,  et  ex  publico  vel  notorio  concubinatu;  et 
nuptias  dirimit  in  primo  et  secundo  gradu  lineae 
rectae  inter  virum  et  consanguineas  mulieris,  ac  vice 
versa. 

178.  The  impediment  of  public  decency  arises 
from  invalid  marriage,  whether  consummated 
or  not,  and  from  public  or  notorious  concubi- 
nage; and  it  annuls  marriage  in  the  first  and 
second  degree  of  the  direct  line  between  the 
man  and  the  blood  relations  of  the  woman  and 
vice  versa. 

1.  Betrothals  produce  no  canonical  impediment, 
at  present ;  valid  marriage,  which  produced  formerly 
the  impediment  of  public  decency  when  it  was  only 
ratified,  now  produces  the  impediment  of  affinity. 
Public  decency  now  arises  from  two  causes : 

(a)  From  invalid  marriage.  Even  if  consum- 
mated, invalid  marriage  produces  the  impediment, 
not  of  affinity,  as  before,  but  only  of  public  decency. 
It  does  not  make  any  difference  what  the  cause  of 
the  nullity  was,  except  that  there  must  have  been  an 


182        DIRIMENT  IMPEDIMENTS 

attempt  at  marriage,  the  contract  although  invalid 
must  have  the  figura  matrimonii  in  the  sense  ex- 
plained before. 

(fe)  From  public  or  notorious  concubinage.  Occa- 
sional sexual  relations  do  not  produce  the  impedi- 
ment, either  of  affinity,  as  they  did  formerly,  or  of 
public  decency.  Even  concubinage,  to  produce  the 
impediment,  has  under  the  present  law  to  be  public 
or  notorious.  A  purely  civil  contract  of  marriage 
constitutes  a  state  of  public  concubinage. 

179.  2.  The  impediment  of  public  decency  is  com- 
puted like  that  of  affinity,  and  exists  between  the  man 
and  the  blood  relations  of  the  woman  and  vice  versa ; 
it  does  not  extend  to  the  relations  by  marriage  or  to 
the  affines.  Henceforth  it  will  annul  marriage  only 
in  the  direct  line,  and  even  in  this  it  is  limited  to  the 
first  and  second  degrees.  A  man  can  not  marry 
validly  the  daughter  or  granddaughter  of  the  woman 
with  whom  he  has  contracted  an  invalid  marriage  or 
lived  in  public  concubinage,  but  he  can  marry  her 
sister. 


XII.  SPIRITUAL  RELATIONSHIP 
A.  Origin  of  the  Impediment 

180.  (a)  Baptism  being  a  new  birth,  Christians, 
from  the  beginning,  looked  upon  those  from  whom 
they  had  received  that  sacrament  as  spiritual  parents. 
This  spiritual  paternity  was  little  by  little  extended 
to  the  sponsors  and  to  those  who  had  assisted  in  the 
preparation  of  the  catechumens ;  then  to  the  ministers 


SPIRITUAL  RELATIONSHIP       183 

and  sponsors  in  the  sacrament  of  Confirmation,  which 
completes  Baptism;  and  also,  according  to  some,  to 
the  minister  of  the  sacrament  of  Penance.  This  was 
the  paternitas  and  maternitas  spiritualis,  to  which 
was  added  the  compaternitas  or  commatemltas,  direct 
or  indirect ;  i.e.,  the  spiritual  relationship  between  the 
sponsors  and  the  parents  of  the  baptized  person  or 
between  the  baptized  person  and  the  husband  or  wife 
of  the  sponsor;  then  the  confratemitas  or  relation- 
ship between  the  baptized  person  and  the  children  of 
the  spiritual  father  or  mother.  Once  those  relation- 
ships were  admitted,  it  was  natural  that  they  should 
be  considered  as  impediments  to  marriage. 

181.  (6)   The  Council  in  Trullo  in  692  prohibited 
marriage  between  the  compatres  and  the  commatres; 
the  Council  of  Rome  in  721  enacted  the  same  ordin- 
ance, and  gradually  the  other  forms  of  spiritual  re- 
lationship became  impediments  also.     When  the  cus- 
tom had  been  introduced  of  having  several  sponsors 
at  Baptism,  the  impediments  of  spiritual  relationship 
became  so  numerous  that  the  need  of  a  reform  was 
felt  by  all.     It  was  effected  by  the  Council  of  Trent. 

182.  (c)   The  Council  of  Trent  decreed  (1)  that 
there  should  not  be  more  than  one  godfather  and  one 
godmother  for  each  baptism  or  confirmation;    (2) 
that  the  fraternitas  and  the  compaternitas  indirecta 
were  abrogated.     There  remained  an  impediment  of 
spiritual  relationship   (1)   between  the  minister  of 
the  sacraments  of  Baptism  or  Confirmation  and  the 
sponsors  on  one  side,  and  the  person  baptized  or  con- 
firmed on  the  other;  (2)  between  the  minister  and 
sponsors  on  the  one  side  and  the  parents,  legitimate 


184        DIRIMENT  IMPEDIMENTS 

or  illegitimate,  of  the  baptized  or  confirmed  party  on 
the  other. 

The  conditions  for  contracting  the  impediment  are 
(1)  that  Baptism  or  Confirmation  be  valid;  (2)  that 
the  sponsors  have  the  intention  of  acting  as  such; 
(3)  that  they,  personally  or  by  proxy,  touch  physic- 
ally the  person  baptized  or  confirmed  at  the  moment 
the  sacrament  is  administered;  (3)  that  they  be 
not  legitimately  rejected  by  the  Bishop  or  pastor ;  (5) 
that  they  be  baptized,  or  confirmed  for  Confirmation. 
This  law  had  been  in  force  to  the  present  time.  (Tan- 
querey,  n.  1097.) 

B.    Present  Discipline 

Can.  1079.  Ea  tantum  spiritualis  cognatio  matri- 
monium  irritat,  de  qua  in  can.  768. 

183.  Only  that  spiritual  relationship  annuls 
marriage  which  is  mentioned  in  can.  768.  (It 
arises  only  from  Baptism  and  exists  between 
the  baptized  person  and  the  minister,  the  bap- 
tized person  and  the  sponsor.) 

No  longer  does  any  impediment  of  spiritual  rela- 
tionship arise  from  Confirmation.  That  which  arises 
from  Baptism  is  restricted  to  the  paternitas,  the 
compatemitas  being  abolished ;  i.e.,  it  exists  only  be- 
tween the  baptized  person  on  one  side,  the  minister 
and  the  sponsor  on  the  other. 

The  conditions  for  contracting  the  impediment  re- 
main the  same;  there  is  no  serious  doubt  that  it  is 
produced  by  private  as  well  as  by  solemn  Baptism. 


LEGAL  RELATIONSHIP  185 

XIII.   LEGAL  RELATIONSHIP 
A.  Origin  of  the  Impediment 

184.  Legal  relationship  arises  from  the  act  of 
adoption,  sanctioned  at  law,  by  which  a  person  re- 
ceives as  his  child  one  who  is  not  so  by  nature. 
Roman  law  recognized  and  regulated  adoption  and 
made  it  an  impediment:  (1)  Between  the  adopter 
and  the  adopted  and  the  descendants  of  the  latter  who 
were  under  his  authority  at  the  time  of  the  adoption 
— this  was  by  way  of  quasi-paternity,  and  the  impedi- 
ment continued  even  after  emancipation  or  the  dis- 
solution of  the  adoption;  (2)  between  the  adopted 
and  the  children  of  the  adopter,  by  way  of  quasi-fra- 
ternity;  (3)  between  the  adopted  and  the  adopter's 
wife  and  between  the  adopter  and  the  adopted's  wife. 

The  Church  accepted  these  provisions  of  the  Roman 
law  at  least  substantially  and  gave  them  canonical 
force.  "The  intimacy  consequent  upon  these  legal 
relations  was  recognized  as  ample  ground  for  placing 
a  bar  on  the  hope  of  marriage,  out  of  respect  for 
public  propriety,  and  in  order  to  safeguard  the 
morals  of  those  brought  into  such  close  relations." 

But  in  countries  which  were  not  under  the  Roman 
law  or  where  the  Roman  law  had  been  modified  in  a 
notable  manner,  the  question  arose  whether  there  ex- 
isted the  impediment  of  legal  relationship.  The 
answer  was  that  whenever  the  substantial  elements 
of  the  Roman  adoption  law  are  retained  in  the  new 
legislations  the  Church  recognizes  this  relationship 
as  a  diriment  impediment.  Hence  a  new  difficulty. 
There  were  in  Roman  law,  since  the  time  of  Justin- 


186         DIRIMENT  IMPEDIMENTS 

ian,  two  kinds  of  adoption,  the  perfect  and  the  im- 
perfect adoption.  The  essential  effect  of  the  perfect 
adoption  was  that  it  placed  the  adopted  under  the 
control  of  the  adopter  whose  name  he  took,  made  him 
a  member  of  his  family  and  his  necessary  heir.  By 
imperfect  adoption  the  adopted  did  not  come  into 
the  family.  Many  canonists  had  maintained  that 
only  perfect  adoption  gave  rise  to  a  marriage  impedi- 
ment; others  that  imperfect  adoption  had  the  same 
effect.  The  new  law  removes  all  doubts. 

B.   Present  Legislation 

Can.  1080.  Qui  lege  civili  inhabiles  ad  nuptias  in- 
ter se  ineundas  habentur  ob  cognationem  legalem  ex 
adoptione  ortam,  nequeunt  vi  juris  canonici  matri- 
monium  inter  se  valide  contrahere. 

185.  Those  whom  the  civil  law  considers  as 
unable  to  marry  one  another,  because  of  the 
legal  relationship  arising  from  adoption,  are, 
by  canon  law,  incapable  of  contracting  marriage 
validly. 

We  have  seen  before  that  wherever  legal  relation- 
ship renders  a  marriage  unlawful  by  civil  law,  the 
marriage  is  forbidden  by  ecclesiastical  law.  Here 
it  is  enacted  that  if  the  law  of  the  country  considers 
legal  relationship  as  an  obstacle  to  the  validity  of  the 
marriage  contract,  that  same  relationship  constitutes, 
by  canon  law,  a  diriment  impediment  to  marriage. 
The  Church,  therefore,  now  gives  canonical  value  to 
the  prescriptions  of  modern  legislations  on  that  point, 


LEGAL  RELATIONSHIP  187 

as  formerly  she  gave  canonical  value  to  the  prescrip- 
tions of  the  Roman  law. 

To  determine  on  what  conditions  the  impediment 
of  legal  relationship  is  produced  and  how  far  it  ex- 
tends, the  laws  of  the  country  will  have  to  be  con- 
sulted. 


CHAPTER  V 
OF  THE  MATRIMONIAL  CONSENT 

I.    THE  CONSENT  ITSELF:  ITS  IMPOR- 
TANCE AND  QUALITIES 

Can.  1081.  §  1.  Matrimonium  facit  partium  con- 
sensus inter  personas  jure  habiles  legitime  manifes- 
tatus;  qui  nulla  humana  potestate  suppler!  valet. 

§  2.  Consensus  matrimonialis  est  actus  voluntatis 
quo  utraque  pars  tradit  et  acceptat  jus  in  corpus, 
perpetuum  et  exclusivum,  in  ordine  ad  actus  per  se 
aptos  ad  prolis  generationem. 

186.  §  1.  Marriage  is  constituted  by  the  duly 
manifested  consent  of  persons  juridically  able 
to  marry;  which  consent  can  not  be  supplied 
by  any  human  power. 

§  2.  The  marriage  consent  is  an  act  of  the 
will  by  which  each  party  gives  and  accepts  a 
perpetual  and  exclusive  right  over  the  body  for 
the  exercise  of  acts  suitable  of  themselves  for 
the  procreation  of  children. 

187.  1.   (a)  Two  different  theories  of  marriage 
were  in  vogue  for  some  time  in  the  schools.     For 
Gratian  and  the  school  of  Bologna,  marriage  is  be- 
gun by  consent,  but  it  becomes  complete,  indissoluble, 
and  a  sacrament  only  when  it  is  consummated.     For 
Peter  Lombard  and  the  school  of  Paris,  marriage 
contracted  by  mutual  consent  alone  is  a  true  and 

189 


190    THE  MATRIMONIAL  CONSENT 

complete  marriage,  absolutely  indissoluble,  and,  be- 
tween Christians,  a  sacrament.  This  second  theory 
had  the  support  of  early  Christian  writers,  received 
the  approval  of  Sovereign  Pontiffs,  particularly  of 
Alexander  III,  and  soon  prevailed.  It  was  conceded, 
however,  to  the  first  theory  that,  whilst  non-consum- 
mated marriage  is  a  complete  marriage  and  a  sacra- 
ment, yet  it  is  not  absolutely  indissoluble.  This 
Duality  belongs  fully  to  the  marriage  ratified  and 
consummated.  Thus  mutual  consent  is  sufficient  to 
constitute  marriage  in  its  essence;  consummation 
adds  an  accidental  perfection  and  more  absolute  in- 
dissolubility.  (Gasparri,  n.  770;  De  Smet,  n.  59.) 

188.  (6)   To  have  such  efficacy,  consent  must  be 
given  by  persons  who  are  not  prevented  by  any  law 
from  contracting  marriage;    and  since  it  must  be 
mutual,  and,  among  Christians,  sacramental,  it  must 
be  known  to  both  parties,  and  manifested  outwardly 
and  legitimately ;  i.e.,  in  the  form  prescribed,  if  there 
is  one. 

(c)  Consent,  sufficient  in  itself,  is  so  necessary 
that  while  "in  a  civil  contract  the  absence  of  consent 
may  sometimes,  for  certain  reasons,  be  supplied  by 
the  law,  no  human  power  can  do  this  in  the  case  of 
marriage."  (Pius  VI,  July  11,  1789.)  "It  can  not 
be  supplied  by  paternal  authority  or  by  the  supreme 
authority  of  the  Church  or  of  the  State ;  for  it  belongs 
exclusively  to  the  bride  and  bridegroom  to  transfer 
to  each  other  ownership  of  their  bodies,  and  to  take 
upon  themselves  the  yoke  of  marriage." 

189.  2.  The  marriage  consent  is  an  act  of  the 
will  with  a  definite,  specific  object, 


OBSTACLES  TO  VALID  CONSENT  191 

(a)  The  act  of  the  will  must  really  exist,  actually 
or  virtually,  not  in  a  merely  interpretative  manner. 
It  is  the  act  of  the  will  that  constitutes  the  contract. 
Acts  of  the  intellect,  dispositions  of  mind,  opinions, 
errors  of  judgment,  are  considered  only  in  so  far  as 
they  affect  the  act  of  the  will. 

(6)   The  consent  is  a  mutual  one. 

(c)  The  essential  object  of  the  consent  is  a  right 
over  each  other's  body  with  a  view  to  certain  specific 
acts. 

(d)  That  right  must  be  granted  and  accepted  as 
perpetual  and  exclusive. 

II.  OBSTACLES  TO  VALID  CONSENT: 

IGNORANCE,  ERROR,  SIMULATION, 

VIOLENCE,  OR  FEAR 

1.°   IGNORANCE 

Can.  1082.  §  1.  Ut  matrimonialis  consensus  ha- 
beri  possit,  necesse  est  ut  contrahentes  saltern  non 
ignorent  matrimonium  esse  societatem  permanen- 
tem  inter  virum  et  mulierem  ad  filios  procreandos. 

§  2.  Haec  ignorantia  post  pubertatem  non  prae- 
sumitur. 

190.  §  1.  In  order  that  matrimonial  consent 
be  possible  it  is  necessary  that  the  contracting 
parties  at  least  be  not  lacking  in  the  knowledge 
that  marriage  is  the  permanent  union  of  man 
and  woman  for  the  procreation  of  children. 

§  2.  Such  ignorance  is  not  presumed  in  those 
who  have  attained  the  age  of  puberty. 

1.  We  can  not  consent  to  what  we  do  not  know; 
the  marriage  consent  is  not  possible  without  some. 


192    THE  MATRIMONIAL  CONSENT 

at  least  confused,  knowledge  of  what  constitutes  the 
essential  object  of  the  marriage  contract;  and  this  is 
the  mutual  right  and  obligation  to  the  conjugal  act: 
Jus  in  corpora  in  ordine  ad  actus  de  se  aptos  ad  gen- 
erationem  prolis.  Hence  a  person  who  would  marry 
without  having  any  idea  of  that  right  and  obligation 
would  not  marry  validly.  Clear  and  explicit  knowl- 
edge is  not  necessary.  If  one,  knowing  that  the  pur- 
pose of  marriage  is  the  procreation  of  children,  would 
enter  the  contract  with  that  in  view  and  would  con- 
sent to  all  it  implies,  although  having  no  distinct  idea 
of  what  is  required  for  generation,  there  would  be 
confused  knowledge  of,  and  consent  to,  what  consti- 
tutes the  essential  object  of  the  contract,  and  the  mar- 
riage would  be  valid;  even  if  the  party  was  so  dis- 
posed that  if  he  knew  what  the  act  of  generation 
really  is,  he  would  not  give  his  consent.  But  at  least 
that  confused  knowledge  of  the  substantial  object  of 
the  contract  is  necessary. 

191.  2.  Ignorance  of  the  primary  purpose  of  mar- 
riage is  easily  admitted  in  children.  In  the  ancient 
legislation  it  was  always  presumed  before  the  age  of 
puberty ;  after'  that  age,  on  the  contrary,  knowledge  is 
presumed.  The  presumption  admits  of  proofs  to  the 
contrary,  but  it  would  require  strong  evidence  to  ob- 
tain the  annulment  of  a  marriage  on  the  ground  of 
ignorance  in  a  person  of  age  to  marry.  Frequently 
in  such  cases  the  Congregations  find  the  evidence  in- 
sufficient, but  it  is  possible  to  obtain  a  dispensation 
super  matrimonium  ratum  et  non  consummatum. 
(A.  S.  S.,  v.,  p.  555.) 


OBSTACLES  TO  VALID  CONSENT  193 

2.°    EREOR 

192.  In  relation  to  marriage,  error  may  be  of  fact 
or  of  right.  Error  of  fact  is  error  about  the  person 
with  whom  the  contract  is  made  or  about  his  qualities. 
Error  of  right  may  be  about  the  nature,  the  proper- 
ties, the  sacramental  character,  or  the  validity  of  the 
marriage. 

Error  is  called  concomitant  when  it  has  no  real 
influence  on  the  consent,  so  that  even  if  the  error  had 
not  existed  the  consent  would  have  been  given.  It 
is  called  antecedent  when  it  has  such  influence  that 
if  the  truth  had  been  known  the  consent  would  have 
been  withheld;  the  error  is  then  said  to  be  giving 
cause  to  the  contract,  dans  causam  contractui. 

That  disposition  of  a  person  who  would  be  averse 
to  giving  consent  if  such  or  such  was  known,  is  called 
an  interpretative  will.  It  is  not  an  actual  reality 
and  does  not  affect  the  validity  of  marriage.  What 
has  to  be  considered  is  not  what  would  have  been 
done  if  such  a  fact  had  been  known,  but  what  has 
been  done  in  reality. 

A.  Error  of  Fact — as  to  Person  or  Quality 

Can.  1083.  §  1.  Error  circa  personam  invalidum 
reddit  matrimonium. 

§  2.  Error  circa  qualitatem  personae,  etsi  det  cau- 
sam contractui,  matrimonium  irritat  tantum: 

1.°  Si  error  qualitatis  redundet  in  errorem  per- 
sonae ; 

2.°  Si  persona  libera  matrimonium  contrahat  cum 
persona  quam  liberam  putat,  cum  contra  sit  serva, 
servitute  proprie  dicta, 


194    THE  MATRIMONIAL  CONSENT 

193.  §  1.  Error  about  the  person  renders  a 
marriage  invalid. 

§  2.  Error  about  the  quality  of  the  person, 
even  if  it  is  cause  of  the  contract,  invalidates 
marriage  only: 

1.°  When  the  error  about  the  quality  amounts 
to  an  error  about  the  person. 

2.°  If  a  free  person  marries  one  whom  he 
believes  to  be  free  also,  but  who,  on  the  con- 
trary, is  in  a  state  of  servitude  properly  so 
called. 

194.  1.  An  error  of  person  does  not  necessarily 
invalidate  the  other  sacraments,  nor  other  contracts 
generally,  but  as  the  object  of  the  marriage  contract 
is  the  very  person  of  the  contracting  parties,  an  error 
on  this  point  is  an  error  about  the  essential  object  of 
the  consent  and  must  therefore  substantially  vitiate 
it.     This  will  be  true  whatever  the  cause  of  the  error 
and  even  if  it  was  merely  concomitant.     N.  gives 
his  consent  to  marry  M. ;  the  person  who  accepts  the 
consent  and  gives  hers  in  return  is  S.     The  marriage 
is  null  even  if  N.  would  be  just  as  willing  to  marry 
S.     The  consent  is  in  reality  given  to  M. ;  there  is 
no  agreement  of  the  contracting  parties  on  the  same 
object.     If  N.  would  give  his  consent  to  the  person 
here  present,  falsely  thinking  it  is  M.,  the  contract 
would  be  valid;  the  error  here  is  about  a  quality,  not 
the  person. 

195.  2.  Error  about  the  qualities  of  the  other  con- 
tracting party  does  not,  as  a  rule,  invalidate  the  con- 
tract; because  for  the  validity  of  the  contract  it  is 


OBSTACLES  TO  VALID  CONSENT  195 

sufficient  to  have  what  constitutes  the  essential  object 
of  the  consent,  and  in  marriage  the  essential  object 
of  the  consent  is  the  person;  the  qualities  are  some- 
thing accidental  in  themselves,  very  important  some- 
times, still  accidental.  Neither  does  it  matter 
whether  the  error  is  antecedent  or  merely  concomi- 
tant, whether  the  consent  would  have  been  refused 
had  the  truth  been  known.  In  reality,  the  consent  was 
not  refused  and  the  contract  was  made.  Some  ancient 
canonists,  like  Pontius  and  Ledesma,  hesitated  to 
admit  that  conclusion,  but,  in  modern  times  particu- 
larly, it  was  universally  received,  the  Roman  Congre- 
gations applied  it  in  their  decisions,  and  now  it  has 
the  official  sanction  of  the  law. 

196.  The  two  exceptions  to  the  rule  are  in  reality 
no  exception. 

Error  about  the  quality  invalidates  the  contract: 
(a)  When  it  amounts  to  an  error  about  the  person, 
when  it  is  really  an  error  about  the  person,  because 
the  quality  serves  to  identify  the  person.  N.  intends 
to  marry  the  second  daughter  of  P.,  otherwise  un- 
known to  him ;  the  person  present  is  the  third  daugh- 
ter. The  marriage  is  null  because  the  consent  was 
given  to  the  second.  If  the  consent  had  been  given 
to  the  person  here  present,  the  marriage  would  be 
valid.  More  naturally,  it  is  in  this  last  sense  that 
the  contract  is  made;  and  it  is  always  so  when  the 
party  is  known.  In  case  of  doubt  the  presumption 
is  in  favor  of  the  validity  of  marriage.  (Qasparri, 
n.  785.) 

197.  (6)  Error  as  to  the  servile  condition  of  the 
other  party  renders  marriage  invalid  by  a  special 


196    THE  MATRIMONIAL  CONSENT 

provision  of  the  ecclesiastical  law  on  three  conditions : 
(1)  that  one  of  the  contracting  parties  is  free,  the 
other  a  slave;  (2)  that  this  servile  condition  is  not 
known  to  the  free  party  at  the  time  of  the  marriage ; 
(3)  and  that  this  state  of  servitude  is  not  simply 
serfdom,  but  slavery  properly  so  called. 

Canonists,  after  the  Decretals,  treat  of  servile  con- 
dition as  a  distinct  impediment  because  it  was  so 
originally.  It  rendered  the  slave  unable  to  contract 
marriage  with  any  free  person.  Later  on,  marriage 
was  declared  null  only  when  the  free  party  did  not 
know  of  the  servile  condition  of  the  other.  Finally, 
the  impediment  ceased  to  be  one  of  incapacity  on  the 
part  of  the  slave  and  became  one  of  error  affecting  the 
consent  of  the  free  party.  It  is  an  ecclesiastical  im- 
pediment not  incurred,  therefore,  by  the  unbaptized. 
It  is  not  a  relative  impediment — if  the  free  party 
is  not  baptized  it  does  not  exist. 

B.   Error  of  Law — as  to  the  Properties  of  Marriage 

Can.  1084.  Simplex  error  circa  matrimonii  uni- 
tatem  vel  indissolubilitatem  aut  sacramentalem  dig- 
nitatem, etsi  det  causam  contractui,  non  vitiat  con- 
sensum  matrimonialem. 

198.  A  simple  error  as  to  the  unity,  indissolu- 
bility,  or  sacramental  character  of  marriage, 
even  if  it  be  cause  of  the  contract,  does  not 
vitiate  the  consent. 

Error  as  to  the  essential  object  of  the  contract  viti- 
ates the  consent,  like  ignorance.  Error  as  to  the  es- 
sential properties  does  not,  as  long  as  it  remains 


OBSTACLES  TO  VALID  CONSENT  197 

simply  an  error  of  the  mind,  whether  antecedent  or 
concomitant.  Thus,  a  man  who  intends  to  form  a 
real  contract  of  marriage,  although  he  does  not  be- 
lieve in  its  indissolubility  or  sacredness,  will  be  mar- 
ried validly,  provided  he  does  not  exclude  those  prop- 
erties by  a  positive  act  of  his  will,  even  though  he 
would  exclude  them  if  he  thought  of  it.  His  con- 
sent is  directed  expressly  to  the  marriage  contract 
and  by  way  of  consequence  to  the  properties  which 
are  inseparable  from  it.  His  prevailing  intention  is 
to  contract  marriage;  his  views  on  the  properties  of 
marriage  are  errors  in  the  mind  which  do  not  affect 
the  primary  object  of  the  will.  If,  however,  he 
would  exclude  those  properties  and  make  that  exclu- 
sion the  primary  object  of  his  will,  this  then  would 
prevail  over  his  intention  of  marrying  and  the  con- 
sent would  be  vitiated,  because  one  can  not  will  mar- 
riage without  willing  an  indissoluble  union.  But 
this  requires  more  than  a  theoretical  error;  it  sup- 
poses a  positive  act  of  the  will,  placing  a  condition, 
making  consent  depend  on  something  else  than  the 
substantial  element  of  the  contract.  That  positive 
act  is  a  fact  which  must  be  proved  and  is  not  pre- 
sumed. Hence  the  difficulty  of  annulling  a  marriage 
on  the  ground  of  error  as  to  quality.  (Gasparri,  n. 
792;  De  Smet,  n.  261;  Ami  du  Clerge,  Oct.  18, 
1906;  A.  A.  S.,  1910,  pp.  584,  961;  1911,  p.  497; 
1915,  June,  p.  292.  Canoniste  Contemporain,  Aout, 
1915,  p.  397.) 


198    THE  MATRIMONIAL  CONSENT 

3.°   KNOWLEDGE  OR  CONVICTION  OF  THE  NULLITY  OF 
THE   MAEKIAGE 

Can.  1085.  Scientia  aut  opinio  nullitatis  matri- 
monii  consensum  matrimonialem  necessario  non 
excludit. 

199.  The  knowledge  or  thought  that  the  mar- 
riage will  be  null  does  not  necessarily  exclude 
matrimonial  consent. 

If  a  person,  thinking  or  knowing  that  he  can  not 
he  married  validly,  would,  in  consequence  of  that, 
go  through  the  ceremony  as  a  merely  external  per- 
formance or  intending  only  to  form  a  purely  civil 
contract,  he  would  not  be  giving  a  matrimonial  con- 
sent; the  marriage  would  be  null  even  if  it  would 
happen  that  the  supposed  impediment  would  not  ex- 
ist; and  to  revalidate  it  a  new  consent  would  be  ab- 
solutely necessary. 

If,  on  the  contrary,  that  same  person  intends  to  do 
what  he  can  and  gives  his  consent,  come  what  may, 
his  consent  is  a  matrimonial  consent;  if  there  hap- 
pened to  be  no  impediment,  the  marriage  would  be 
valid ;  and,  if  the  impediment  existed,  once  it  would 
be  removed,  the  marriage  might  be  revalidated  with- 
out renewing  the  consent.  The  intention  to  form  a 
real  marriage  contract  is  always  presumed  unless  the 
contrary  be  proved. 

4.°  FICTION  6B  SIMILATION 

Can.  1086.  §  1.  Internus  animi  consensus  semper 
praesumitur  conformis  verbis  vel  signis  in  cele- 
brando  matrimonio  adhibitis. 


OBSTACLES  TO  VALID  CONSENT  199 

§  2.  At  si  alterutra  vel  utraque  pars  positive  vol- 
untatis  actu  excludat  matrimonium  ipsum,  aut 
omne  jus  ad  conjugalem  actum,  vel  essentialem 
aliquam  matrimonii  proprietatem,  invalide  con- 
trahit. 

200.  §  1.  The  internal  consent  of  the  will  is 
always  supposed  to  correspond  to  the  words  or 
signs  used  in  the  celebration  of  the  marriage. 

§  2.  But  if  one  of  the  parties,  or  both,  would 
exclude,  by  a  positive  act  of  the  will,  marriage 
itself  or  all  right  to  the  conjugal  act,  or  an  es- 
sential property  of  marriage,  the  contract 
would  be  null. 

1.  When  a  contracting  party  utters  externally  and 
seriously  words  expressing  consent,  he  is  supposed  to 
consent  internally.  His  consent  is  supposed  to  be 
absolute  if  it  is  expressed  absolutely.  "Nobody  is  to 
be  considered  as  having  said  what  was  not  on  his 
mind."  This,  however,  is  only  a  presumption,  and 
if  in  reality  the  internal  consent  was  wanting,  no 
matter  what  the  external  words  might  have  been, 
the  contract  would  be  null  in  itself  and  before  God. 

201.  2.  There  is  simulation  when   a  party  pro- 
nounces words  which  express  willingness  to  contract 
marriage  while  internally  be  has  not  that  intention 
or  even  positively  excludes  it. 

There  will  also  be  simulation  if  the  party  intends 
to  contract  marriage  but  refuses  to  accept  the  essen- 
tial obligations  thereof;  if  he  excludes  by  a  positive 
act  of  the  will  all  obligation  to  the  conjugal  relations. 
There  are  in  that  case  two  acts  of  the  will  annulling 


200    THE  MATRIMONIAL  CONSENT 

each  other.  The  same  is  true  of  one  who  positively 
excludes  the  essential  properties  of  marriage — unity, 
indissolubility,  and  sacramental  dignity.  As  mar- 
riage can  not  exist  without  them,  the  will  excluding 
one  of  them  annuls  the  will  to  contract  marriage. 

Would  the  effect  be  the  same  if  one  was  willing  to 
assume  the  obligations  of  marriage,  but  had  no  in- 
tention of  fulfilling  them,  or  would  expressly  intend 
to  abuse  marriage,  be  unfaithful,  prevent  conception, 
procure  abortion  ?  Such  an  intention  would  assuredly 
be  criminal,  but  it  is  not  included  among  those  which 
render  the  marriage  null,  as  being  incompatible  with 
true  matrimonial  consent.  Canonists  find  a  differ- 
ence between  an  intention  contrary  to  the  indissolu- 
bility of  the  bond  or  the  good  of  the  sacrament  and 
an  intention  contrary  to  the  good  of  fidelity  or  of  the 
offspring.  The  latter  does  not  annul  the  marriage 
unless  it  has  been  set  down  as  a  pact,  because  fidelity 
and  the  good  of  the  offspring  do  not  belong  to  the  con- 
tract itself,  but  rather  to  its  use;  they  follow  the 
contract  already  constituted  in  its  essence.  (Gas- 
parri,  nn.  802,  803 ;  Wernz,  n.  302,  note  44;  A.  A.  S., 
Oct.,  1914,  Oregonopolitana,  p.  516 ;  June,  1915, 
Neo-Eboracensis,  p.  292  seq. ;  Canoniste  Contempor- 
ain,  Oct.,  1914,  p.  592;  Aout,  1915,  p.  397.) 

202.  (3)  Simulation  is  difficult  to  prove,  (a) 
The  testimony,  even  on  oath,  of  the  interested  party 
can  not  be  a  sufficient  proof,  for  "it  is  not  proper  to 
take  his  own  word  to  destroy  the  value  of  his  own 
testimony."  Neither  will  the  sworn  testimony  of  the 
two  contracting  parties  suffice,  for  the  simulation  of 
one  is  of  itself  unknown  to  the  other.  The  Glossa 


OBSTACLES  TO  VALID  CONSENT  201 

says  that  "should  a  man  protest  beforehand  that, 
whatever  he  maj  affirm,  he  will  not  have  the  inten- 
tion of  contracting  marriage,  if  he  would  afterward 
say  publicly,  'I  consent/  the  marriage  would  be  valid, 
for  he  might  in  the  meantime  have  withdrawn  from 
the  original  intention;  and  should  he  declare  that  he 
was  still  in  the  same  intention  at  the  time  of  the 
contract,  he  is  not  to  be  believed,  because  the  inter- 
pretation is  to  be  made  against  the  person  who  uses 
guile."  This  should  not  be  understood  as  meaning 
that  the  proof  of  simulation  is  impossible.  There 
are  examples  of  marriages  declared  null  by  the 
Roman  Congregations  because  of  want  of  internal 
consent.  (Parisiensis,  March  7,  1885 ;  A.  S.  S.,  xviii, 
p.  14;  Massiliensis,  June  1,  1911;  A.  A.  S.,  iii,  p. 
525;  Gasparri,  n.  800.) 

(6)  To  prove  simulation  it  is  necessary,  in  the 
first  place,  to  assign  a  cause  which  could  satisfactorily 
account  for  it  and  render  it  not  unlikely.  Then  the 
fact  itself  of  the  simulation  has  to  be  confirmed  by 
conjectures  arising  from  the  circumstances — ante- 
cedent, concomitant,  and  consequent — of  the  mar- 
riage. (Gasparri,  n.  798.)  If  almost  immediately 
after  the  ceremony  a  man  would  declare  that  he  did 
not  consent,  would  abandon  his  wife,  this  would 
create  a  strong  presumption  that  the  consent  was 
simulated.  When  the  proof  will  be  really  conclusive 
is  for  a  prudent  man  to  decide  in  each  case.  If  there 
remains  a  serious  doubt,  the  presumption  is  for  the 
validity  of  the  marriage. 

(c)  When  it  is  alleged  that  the  properties  of  mar- 
riage were  excluded,  it  is  necessary  to  prove  that  this 


202    THE  MATRIMONIAL  CONSENT 

was  done  by  a  positive  act  of  the  will  and  not  in  a 
merely  interpretative  manner;  that  there  was  a  real 
act  of  the  will,  not  a  simple  error  of  the  mind.  In 
case  of  doubt,  it  is  presumed  that  the  intention  of 
marrying  prevailed.  Likewise,  it  is  presumed  that 
a  party  had  only  the  intention  of  violating  his  obli- 
gations when  it  is  not  clearly  proved  that  he  did  not 
intend  to  assume  them. 

(d)  Thus,  there  may  be  conflict  between  the  in- 
ternal and  the  external  forum.    It  may  be  quite  cer- 
tain for  the  parties  or  for  the  confessor  that  a  mar- 
riage is  null  for  want  of  consent,  and  yet  it  may  be 
impossible  to  prove  it  to  the  satisfaction  of  the  ec- 
clesiastical judge.     A  second  marriage  can  not  be 
permitted ;  cohabitation  is  obligatory  and  at  the  same 
time  conjugal  relations  remain  unlawful.     The  only 
remedy  then  is  for  the  party  who  was  guilty  of 
simulation  to  give  now  a  real  consent,  so  that  the 
marriage  be  valid.    As  the  nullity  is  occult,  the  con- 
sent may  be  given  privately;   cohabitation,   animo 
maritali,  will  suffice,  provided  the  consent  of  the 
other  party  perseveres. 

(e)  The  conflict  would  be  more  serious  if  the  man 
who  simulated  consent  had  afterwards,  being  really 
free,  contracted  a  valid  marriage  with  another  wo- 
man.    In  the  external  forum  the  first  woman  would 
be  considered  his  legitimate  wife ;  he  would  be  bound 
to  live  with  her  and  forbidden  to  have  any  relations 
with  the  second  one.     In  conscience,  before  God,  the 
second  woman  would  be  his  real  wife  and  there  would 
be  no  possibility  of  revalidating  the  first  marriage. 


5.°  VIOLENCE  AND  FEAR 

Can.  1087.  §  1.  Invalidum  quoque  est  matrimon- 
ium  initum  ob  vim  vel  metum  gravem  ab  extrinseco 
et  in  juste  incussum,  a  quo  ut  quis  se  liberet,  eligere 
cogatur  matrimonium. 

§  2.  Nullus  alius  metus,  etiamsi  det  causam  con- 
tractui,  matrimonii  nullitatem  secumfert. 

203.  §  1.  Marriage  is  null  also  when  it  is  con- 
tracted because  of  violence  or  grave  fear, 
caused  by  an  external  agent,  unjustly,  to  free 
himself  from  which,  one  is  compelled  to  choose 
marriage. 

§  2.  No  other  fear,  even  if  it  would  give  cause 
to  the  contract,  entails  the  nullity  of  marriage. 

1.  Violence  is  defined,  "the  onset  of  force  too 
great  to  be  resisted,"  and  fear,  "a  perturbation  of 
mind  arising  from  present  or  future  danger."  "Vio- 
lence" and  "fear"  are  correlative  terms.,  like  "cause" 
and  "effect."  "Violence  is  on  the  part  of  the  one 
who  inflicts  the  fear  and  is  of  an  active  nature;  fear 
is  on  the  part  of  the  one  who  suffers  the  violence  and 
is  of  a  passive  nature."  On  account,  however,  of 
their  close  relation  and  because  what  is  true  of  one 
holds  good  of  the  other,  violence  and  fear  are  often 
used  as  synonymous  terms. 

Physical  or  absolute  violence  takes  away  all  free- 
dom; if  a  man  was  made  to  nod  his  consent,  mar- 
riage would  be  null,  even  though  the  internal  con- 
sent really  existed  because  its  external  expression 
would  not  be  free. 


204    THE  MATRIMONIAL  CONSENT 

Again,  violence  or  the  fear  it  causes  may  so  per- 
turb the  mind  that  a  person  does  not  know  what  he  is 
doing.  There  would  clearly  be  no  freedom  in  a 
marriage  contracted  under  the  influence  of  such  a 
fear. 

We  are  concerned  here  with  moral  violence,  or  with 
that  fear  which  does  not  destroy  all  deliberation  and 
freedom,  but  diminishes  it;  with  that  fear  which, 
according  to  the  words  of  the  law,  forces  a  person  to 
choose  marriage.  There  is  some  deliberation  and 
freedom,  since  there  is  choice;  there  is  not  complete 
freedom,  since  the  choice  is  forced. 

204.  2.  Does  such  fear  render  the  marriage  con- 
sent null  even  by  natural  law  ?    Many  authors  think 
it  does,  because,  they  argue,  the  marriage  contract  is 
of  such  a  nature  that  it  demands  perfect  freedom, 
on  account  of  the  heavy  duties  it  imposes  and  the  last- 
ing evils  that  result  from  forced  unions.     (Wernz, 
n.  267 ;  Reiffenstuel,  1.  i,  t.  40,  n.  47.)     Many  others 
maintain  that,  considering  the  natural  law  alone,  a 
marriage  contracted  under  the  influence  of  heavy 
fear    would,    strictly    speaking,    habitually    possess 
enough  freedom  to  be  valid;  but  they  agree  that 
much  more  is  very  desirable  and  that  what  is  strictly 
sufficient  in  itself  is  not  always  so  in  practice.   There- 
fore, the  Church  demands,  even  for  the  validity  of 
the  contract,  freedom  from  grave  fear. 

205.  3.  When  the  discipline  of  the  Church  on  that 
point  was  definitely  established  is   difficult  to   de- 
termine.    In  the  Roman  empire  she  found  practices 
which  she  could  but  condemn — princes  disposing  of 


OBSTACLES  TO  VALID  CONSENT  205 

their  subjects  for  marriage  against  their  will  and  the 
will  of  their  parents.  The  same  abuses  continued 
or  grew  worse  after  the  barbarian  invasions.  Many 
Councils  condemned  them  (Orleans  iv,  541,  c.  22 ; 
Paris  iii,  557,  c.  6;  Toledo  iii,  589,  c.  10),  and 
decreed  severe  penalties  against  the  offenders;  and 
the  more  effectively  to  protect  the  freedom  of  mar- 
riages they  gradually  came  to  declare  invalid  those 
contracted  through  fear.  This  is  clearly  insinuated 
in  an  answer  of  Pope  Nicholas  to  King  Lothaire  in 
863,  and  expressly  ordained  by  Pope  Urban  II, 
1088-1099.  Alexander  III  completed  that  legisla- 
tion which  found  its  place  in  the  Corpus  Juris.  The 
Council  of  Trent  left  it  untouched  and  simply  re- 
newed the  ancient  prohibitions,  forbidding  "all  per- 
sons, of  whatsoever  dignity  or  condition,  to  employ 
constraint  in  any  way  whatever,  whether  directly  or 
indirectly,  against  those  subject  to  them,  or  against 
any  other  person,  so  as  to  prevent  them  from  con- 
tracting marriage  freely."  (Wernz,  n.  262 ;  Esmein, 
ii,  p.  255.) 

The  present  legislation  maintains  the  ancient  disci- 
pline, only  defining  a  few  points  which  had  remained 
somewhat  doubtful. 

206.  4.  Some  conditions  are  required  for  fear  to 
render  the  marriage  contract  invalid :  (a)  It  must  be 
grave,  both  in  the  external  and  in  the  internal  forum. 
The  fear  is  grave  when  it  is  capable  of  extorting 
a  consent  to  marriage  which  would  not  otherwise  be 
given.  It  has  this  effect  when  the  evil  which  is 
feared  is  considered  as  serious  and  imminent.  Some 
evils  are  grave  absolutely  for  all  men,  with  a  few 


206    THE  MATRIMONIAL  CONSENT 

possible  exceptions,  as  loss  of  life,  of  freedom ;  others 
are  grave  relatively,  i.e.,  for  some  persons,  not  for 
others.  The  Church,  in  appreciating  the  gravity  of 
fear  in  the  external  forum,  takes  into  account  the 
subjective  element ;  but  a  certain  objective  gravity  is 
always  required.  If  the  evil  causing  the  fear  was 
absolutely  light  in  itself,  whatever  the  impression 
produced  on  the  contracting  party,  the  marriage 
would  not  be  declared  null.  (A.  A.  S.,  vol.  iv,  p. 
505.) 

The  evil  must  be  imminent,  i.e.,  one  which  is 
threatening  now  and  can  not  be  easily  avoided.  If 
the  one  who  makes  the  threats  is  not  likely  to  carry 
them  out,  if  they  can  be  warded  off  without  much 
difficulty,  if  the  evil  is  feared  only  for  a  distant 
future,  the  fear  is  not  considered  as  grave.  But  the 
fear  might  be  grave  although  the  threats  be  made 
only  against  one's  own  relatives  or  for  the  good  of 
the  party  concerned. 

Does  reverential  fear  constitute  a  grave  fear  ?  If 
it  is  nothing  more  than  the  fear  of  offending,  giving 
pain  to,  a  person  who  is  respected  and  loved,  it  is  not 
a  grave  fear,  nor  reverential  fear  properly  so  called. 
If  one  would  be  afraid  of  incurring  the  anger  of 
parents,  superiors,  etc.,  and  their  indignation  would 
be  likely  to  last  for  a  long  time,  this,  according  to 
some  canonists,  would  be  sufficient  to  constitute  grave 
fear.  In  practice,  however,  the  fear  would  not  be 
presumed  to  have  been  grave  unless  there  be  some 
attendant  circumstances,  like  threats,  blows,  impor- 
tunate and  insisting  entreaties  of  parents.  (Wernz, 


OBSTACLES  TO  VALID  CONSENT  207 

n.  264;  Causa  Colon.,  July  1,  1912;  A.  A.  S.,  vol. 
iv,  p.  671.) 

207.  (6)  The  fear  must  be  unjust,  caused  by  an 
external,  free  agent.  The  fear  of  disease,  death, 
eternal  punishment,  would  not  fulfil  those  conditions. 
Injustice  supposes  violation  of  one's  rights ;  a  man's 
rights  would  be  violated  in  this  matter  if  he  was 
forced  to  contract  a  marriage  which  he  is  not  obliged 
to  contract,  in  justice;  if  he  was  forced  by  one  who 
has  no  right  to  do  so  or  by  means  which  he  has  no 
right  to  use.  In  the  last  two  cases  the  injustice  ex- 
ists only  quoad  modum,  as  to  the  mode  of  procedure, 
and,  according  to  some,  this  would  not  be  sufficient,  at 
least  more  probably,  to  annul  the  consent ;  but  others 
consider  it  as  sufficient.  (Gasparri,  n.  820 ;  Wernz, 
n.  265,  note.) 

(c)  Many  canonists  required  as  a  third  condition 
that  the  fear  be  inflicted  for  the  purpose  of  extorting 
consent  to  marriage.  This  was  not  considered  as 
necessary  by  such  authorities  as  Schmalzgruber,  1.  iv, 
tit.  i,  n.  398,  or  De  Lugo,  n.  175 ;  and  the  present 
law  does  not  demand  it,  either  explicitly  or  implicitly. 
Nor  is  it  required,  as  had  been  done  by  some  canon- 
ists, that  a  person  be  forced  to  marry  a  certain  party, 
but  simply  that  he  should  be  reduced  to  choose  mar- 
riage in  order  to  free  himself  from  the  fear. 

The  legislator  has  taken  care  to  add  that  no  other 
fear  than  the  one  thus  defined  renders  marriage  null, 
even  if  it  would  give  cause  to  the  contract.  We  are 
not  supposed  to  argue  here  from  analogy,  nor  to  ex- 
tend the  effect  of  fear  beyond  the  limits  assigned 
to  it  by  the  law.  The  Church  has  power  to  determine 


208    THE  MATRIMONIAL  CONSENT 

to  what  cases  her  laws  will  apply,  and  authority  to 
interpret  the  natural  law. 

208.  5.  To  prove  the  nullity  of  a  marriage  on  the 
ground  of  fear  is  ordinarily  difficult,  without,  how- 
ever, being  impossible.     Presumptions,  conjectures, 
and  other  circumstances  may  give  moral  certainty. 
Because,  from  the  nature  of  the  case,  ordinary  proofs 
must  often  be  wanting,  the  Church  accepts  as  wit- 
nesses persons  who  would  not  be  admitted  in  other 
causes,  like  friends,  relations,   and  parents  of  the 
petitioner.     The  testimony  of  the  party  concerned 
himself,  if  given  under  oath  and  confirmed  by  other 
circumstances,  is  accepted  as  evidence.     (Gasparri, 
n.  219,  823;  Wernz,  n.  269.) 

To  render  the  consent  null,  the  fear  must  continue 
till  the  moment  of  the  celebration  of  marriage ;  if  it 
has  existed  it  is  presumed  to  continue  unless  the  con- 
trary be  proved.  (Gasparri,  n.  807.) 

If  the  party  had  given  the  consent  under  the  influ- 
ence of  grave  fear,  wishing,  as  the  lesser  of  two  evils, 
that  the  marriage  be  valid,  the  law  of  the  Church,  if 
not  the  natural  law,  would  annul  the  consent  just  the 
same,  according  to  the  common  opinion.  (Lehm- 
kuhl,  Theologia  Moralis,  t.  ii,  n.  738;  Gasparri,  n. 
807.) 

209.  6.  Freedom  from  grave  fear  is  a  condition  for 
the  validity  of  the  consent  from  which  the  Church 
does  not  and  perhaps  can  not  dispense.     Neither  will 
prescription  or  prolonged^cohabitation,  of  themselves, 
validate  a  marriage  contracted  under  those  circum- 
stances, but  only  renewal  of  the  consent  after  the  fear 
has  been  removed  and  the  party  bag  been  made  aware 


MANIFESTATION  OF  THE  CONSENT  209 

of  the  nullity  of  the  first  consent.  (Causa  Osnabru- 
censis,  Jan.  11,  1912;  A.  A.  S.,  vol.  iv,  p.  186.) 

That  renewal  may  be  made  in  secret  if  the  fear  was 
occult:  Continuance  of  cohabitation  will  suffice  for 
that.  When  the  fear  was  public,  the  consent  must 
be  renewed  in  the  form  required  for  the  celebration 
of  marriage.  Hence,  when  the  fear  is  proved  jurid- 
ically, the  question  is  not  even  raised  whether  the 
marriage  was  not  revalidated  by  several  years  of  co- 
habitation, wherever  the  solemn  form  of  marriage  is 
necessary  for  the  validity.  (A.  A.  S.,  vol.  iv,  p. 
115.) 

210.  7.  The  right  of  challenging  a  marriage  on  the 
ground  of  violence  and  fear  belongs  exclusively  to 
the  one  who  has  suffered  the  injustice;  and,  moreover, 
he  would  forfeit  his  right,  according  to  an  instruc- 
tion of  June  20,  1883,  if  he  had  continued  to  cohabit, 
for  a  long  time,  without  protesting  when  liberty  and 
opportunity  for  doing  so  were  not  wanting. 

Numerous  examples  of  marriages  challenged  on 
the  ground  of  fear  are  found  in  the  Acta  Apostolicse 
Sedis.  Cf.  vol.  ii,  pp.  348,  886;  vol.  iii,  pp.  244, 
661 ;  vol.  iv,  pp.  108,  646,  etc. 

III.    MANIFESTATION  OF  THE 
CONSENT 

Can.  1088.  §  1.  Ad  matrimonium  valide  contrahen- 
dum  necesse  est  ut  contrahentes  sint  praesentes 
sive  per  se  ipsi  sive  per  procuratorem. 

§  2.  Sponsi  matrimonialem  consensum  exprimant 
verbis;  nee  aequipollentia  signa  adhibere  ipsis  licet, 
si  loqui  possint. 


210    THE  MATRIMONIAL  CONSENT 

211.  §  1.  In    order    to    contract    marriage 
validly,  it  is  necessary  that  the  parties  be  pres- 
ent either  personally  or  by  proxy. 

§  2.  The  spouses  shall  express  the  matri- 
monial consent  by  words;  nor  are  they  per- 
mitted to  use  equivalent  signs  when  they  are 
able  to  speak. 

1.  Before  the  Council  of  Trent  and  also,  according 
to  the  common  opinion,  confirmed  by  several  de- 
cisions of  Congregations,  under  the  discipline  of  the 
decrees  Tametsi  and  Ne  temere,  marriage  could  be 
contracted  by  letter,  although  it  was  recommended 
not  to  permit  such  mode  of  proceeding  without  grave 
reasons.  The  present  law  rejects  it  altogether  and 
makes  the  presence  of  the  parties  either  personally 
or  by  proxy  a  condition  for  the  validity  of  the  con- 
tract. In  marriages  by  letter  it  was  difficult,  al- 
though not  impossible,  to  observe  the  formalities  de- 
manded for  the  public  celebration  of  marriage ;  hence 
doubts  and  disputes  would  arise  afterward.  They 
will  be  avoided  by  obliging  the  parties  to  appear  in 
person  or  send  a  representative,  which  can  always 
easily  be  done.  (A.  A.  S.,  April  30,  1910,  p.  300 ; 
De  Smet,  n.  70 ;  Nouvelle  Revue  Theologique,  Aout, 
1910,  p.  460;  Canoniste  Contemporain,  1910,  p. 
366.) 

212.  2.  Innocent  III,  asked  by  a  Bishop  how  the 
matrimonial  consent  should  be  expressed,  answered 
that,  for  the  Church,  words  were  necessary.     (IV, 
X,  1,  c.  25.)     From  this  some  had  concluded  that 
there  was  a  grave  obligation  to  use  words  in  contract- 
ing   marriage;    but    others    interpreted    the    Papal 


MARRIAGE  BY  PROXY  211 

declaration  as  containing  only  a  counsel.  The  Coun- 
cil of  Trent  did  not  decide  the  question,  but  the  pres- 
ent canon  clearly  enunciates  the  obligation,  explicitly 
stating  that  the  equivalent  signs,  cequipollentia  signa, 
which,  according  to  the  interpretation  of  Innocent's 
decree,  given  by  Abbas  Panormitanus,  might  serve 
as  substitutes  for  words,  may  not  be  used  now  when 
the  parties  can  speak.  The  pastor  is  to  see  that  the 
law  is  observed.  It  is  not  binding  under  pain  of 
nullity,  but  there  can  be  little  doubt  that  it  is  bind- 
ing under  pain  of  grave  sin. 

IV.   MAKRIAGE  BY  PROXY 

Can.  1089.  §  1.  Firmis  dioecesanis  statutis  desuper 
additis,  ut  matrimonium  per  procuratorem  valide 
ineatur,  requiritur  mandatum  speciale  ad  contra- 
hendum  cum  certa  persona,  subscriptum  a  man- 
dante  et  vel  a  parocho  aut  Ordinario  loci  in  quo 
mandatum  fit,  vel  a  sacerdote  ab  alterutro  delegate, 
vel  a  duobus  saltern  testibus. 

§  2.  Si  mandans  scribere  nesciat,  id  in  ipso  man- 
dato  adnotetur  et  alius  testis  addatur  qui  scrip- 
turam  ipse  quoque  subsignet;  secus  mandatum  irri- 
tum  est. 

§  3.  Si,  antequam  procurator  nomine  mandantis 
contraxerit,  hie  mandatum  revocaverit  aut  in  amen- 
tiam  incident,  invalidum  est  matrimonium,  licet 
sive  procurator  sive  alia  pars  contrahens  haec  ig- 
noraverint. 

§  4.  Ut  matrimonium  validum  sit,  procurator  de- 
bet  munere  suo  per  se  ipse  fungi. 

213.  §  1.  Besides  what  may  be  prescribed  by 
diocesan  statutes,  in  order  that  a  marriage  may 


212    THE  MATRIMONIAL  CONSENT 

be  contracted  validly  by  proxy,  it  is  necessary 
to  have  a  special  mandate  to  contract  marriage 
with  a  specified  person,  signed  by  the  principal, 
and  either  by  the  parish  priest  or  the  Ordinary 
of  the  place  in  which  the  mandate  is  given  or 
by  a  priest  delegated  by  either  of  these,  or  by 
two  witnesses. 

§  2.  If  the  principal  is  not  able  to  write,  this 
fact  is  to  be  noted  in  the  document,  and  an  ad- 
ditional witness  must  sign  it,  else  the  mandate 
is  null. 

§  3.  If,  before  the  proxy  makes  the  contract 
in  the  name  of  the  principal,  the  latter  has  re- 
voked the  commission,  or  has  fallen  into  in- 
sanity, the  marriage  is  invalid,  even  though 
both  the  proxy  and  the  party  with  whom  the 
contract  was  made  would  be  unaware  of  the 
change. 

§  4.  In  order  that  the  marriage  be  valid  the 
proxy  must  discharge  his  office  personally. 

1.  The  Church  has  always  recognized  the  validity 
of  marriage  contracted  by  proxy,  on  certain  condi- 
tions, which  are  enumerated  by  Boniface  VIII  in 
the  last  chapter  De  Procuratoribus,  tit.  xix,  lib.  i  in 
Sexto. 

2.  After  the  Council  of  Trent,  the  question  was 
raised  whether  the  form  it  prescribed  for  marriage 
did  not  suppose  that  the"  parties  should  appear  per- 
sonally before  the  parish  priest  and  the  witnesses. 
Commonly,  however,  it  was  held  that  the  decree 


MARRIAGE  BY  PROXY  213 

Tametsi  and  the  more  recent  decree  Ne  temere  had 
not  modified  the  existing  discipline  on  that  point. 

214.  3.  The  present  canon  admits  the  principle 
of  the  validity  of  marriage  by  proxy  and  it  defines 
with  greater  precision  than  had  been  done  before 
what  formalities  will  henceforth  have  to  be  observed 
for  the  validity  of  the  contract : 

(a)  A  general  commission  to  act  in  the  name  of 
another  does  not  imply  power  to  contract  marriage 
for  him.  Special  authority  must  have  been  received 
for  that;  and,  moreover,  the  principal  must  have 
specified  the  person  with  whom  marriage  is  to  be 
contracted;  the  choice  is  not  to  be  left  to  the  proxy. 

In  order  that  there  be  no  misunderstanding  or 
doubt  about  that  commission,  it  will  not  suffice,  hence- 
forth, that  it  be  given  orally,  but  it  will  have  to  be 
committed  to  writing.  Moreover,  that  there  be  no 
question  about  the  authenticity  of  the  document, 
certain  formalities  are  prescribed  here,  similar  to 
those  necessary  for  the  celebration  of  marriage  itself, 
or  for  the  contract  of  betrothment.  The  document 
has  to  be  signed  by  the  one  who  gives  the  commission, 
in  whose  name  the  marriage  is  to  be  contracted,  and 
by  the  pastor  or  the  Ordinary  of  the  place,  or  two 
witnesses.  It  will  be  noted  that  the  parish  priest 
who  is  to  sign  the  mandate  is  the  one  who  has  juris- 
diction in  the  place  in  which  that  contract  is  made, 
as  for  marriage,  but  not  the  parish  priest  of  the  party. 
The  Ordinary  is  also  the  Ordinary  of  the  place. 
Just  as  for  marriage,  the  parish  priest  or  Ordinary 
can  act  through  a  delegate,  provided  he  be  a  priest. 
If  the  pastor  or  the  Ordinary  or  a  priest  delegated  by 


214    THE  MATRIMONIAL  CONSENT 

either  of  them  can  not  be  had,  then  two  witnesses 
must  sign  the  document.  No  special  qualifications 
are  required  in  the  witnesses. 

215.  (fe)  If  the  party  who  wishes  to  contract  mar- 
riage by  proxy  is  unable  to  write,  mention  of  this  is 
to  be  made  in  the  document  and  another  witness 
added  to  those  regularly  demanded. 

(c)  As  the  proxy  or  delegate  is  acting  in  the  name 
of  the  principal,  it  is  on  the  latter's  consent  that  the 
validity  of  the  contract  depends.  If  that  consent 
does  not  exist  at  the  time  the  marriage  is  celebrated 
and  the  other  party  gives  his  or  hers,  the  marriage 
can  not  be  valid.  It  does  not  matter  whether  or  not 
the  proxy  or  the  other  party  know  that  the  consent 
has  ceased  to  exist.  In  other  matters  the  with- 
drawal of  the  consent  takes  no  effect  until  it  has  been 
made  known  to  the  agent.  Law  supplies,  meanwhile, 
the  consent  which  is  wanting;  but  no  power  on 
earth  can  supply  the  consent  necessary  for  marriage. 

The  consent  ceases  to  exist  when  it  is  withdrawn  or 
when  the  commission  is  revoked.  It  may  be  revoked 
tacitly  or  expressly,  implicitly  or  explicitly,  publicly 
or  privately,  or  even  internally ;  but  if  the  fact  of  the 
revocation  can  not  be  proved,  the  commission  will  be 
considered  as  continuing,  and  the  marriage  will  be 
held  as  valid  in  the  external,  although  it  be  null  in 
the  internal,  forum. 

The  consent  perseveres  virtually  even  if  the  one 
who  gave  it  were  not  thinking  of  it  or  were  asleep  or 
drunk.  But  it  does  not  persevere  when  he  loses  the 
use  of  reason  and  becomes  insane,  as  is  expressly  de- 
clared by  the  law.  Sanchez  assimilated  the  state 


MARRIAGE  BY  INTERPRETER     215 

of  insanity  to  that  of  sleep,  but  canonists  commonly 
treated  it  as  moral  death.  There  is  no  more  doubt 
that  it  suspends  consent. 

4.  A  delegate  can  not  generally  subdelegate;  here 
he  is  expressly  forbidden  to  do  so. 

As  the  above  prescriptions  have  an  annulling 
clause,  they  are  to  be  observed  under  the  pain  of 
nullity  of  the  delegation  and  consequently  of  the  con- 
tract. 


V.    MARRIAGE  BY  INTERPRETER 

Can.  1090.  Matrimonium  per  interpretem  quoque 
contrahi  potest. 

216.  Marriage  can  be  contracted  also  through 
an  interpreter. 

Before  the  Council  of  Trent  there  was  no  doubt 
about  the  validity  of  marriages  contracted  through 
an  interpreter.  But  after  the  publication  of  the 
decree  Tametsi  some  authors,  like  Pontius,  asked  how 
the  pastor  and  witnesses  could  fulfil  their  office  if 
they  did  not  understand  what  the  parties  said.  Com- 
monly it  was  held  that  here,  as  in  other  contracts, 
the  consent  could  be  sufficiently  ascertained  through 
an  interpreter,  provided  he  be  trustworthy.  Still, 
there  remained  some  doubt.  It  is  now  removed; 
marriage  through  an  interpreter  is  certainly  valid 
and  also  lawful  under  certain  conditions. 


216    THE  MATRIMONIAL  CONSENT 

VI.  LICITNESS  OF  THE  FOREGOING  MAR- 
RIAGES THROUGH  PROXY  OR  IN- 
TERPRETER 

Can.  1091.  Matrimonio  per  procuratorem  vel  per 
interpretem  contrahendo  parochus  ne  assistat,  nisi 
adsit  justa  causa  et  de  authenticitate  mandati  vel 
de  interpretis  fide  dubitari  nullo  modo  liceat,  habita, 
si  tempus  suppetat,  Ordinarii  licentia. 

217.  The  pastor  shall  not  assist  at  a  mar- 
riage which  is  to  be  contracted  by  proxy  or  by 
interpreter,  unless  there  be  a  just  cause  for  it, 
the  authenticity  of  the  commission  and  the 
trustworthiness  of  the  interpreter  be  beyond 
all  possible  doubt,  and  the  permission  of  the 
Ordinary  be  obtained  if  time  permits. 

Although  marriages  contracted  by  proxy  or  by  in- 
terpreter be  valid,  and  sometimes  permissible,  they 
are  liable  to  give  rise  to  difficulties  and  do  not  fully 
satisfy  the  demands  of  the  Church's  present  legisla- 
tion; therefore  this  manner  of  entering  the  contract 
is  allowed  only  by  way  of  exception,  when  there  is  a 
just  cause  for  departing  from  the  ordinary  way  of 
proceeding.  Then  precautions  are  to  be  taken  to 
remove  all  danger  of  error  and  fraud ;  the  authentic- 
ity of  the  mandate  and  the  reliability  of  the  inter- 
preter must  be  above  suspicion,  and  the  permission 
of  the  Ordinary  must  be  obtained  when  time  per- 
mits, because  the  matter  is  of  a  somewhat  serious 
nature  and  the  decision  should  as  much  as  possible 
be  left  to  him. 


CONDITIONAL  MARRIAGE         217 
VII.   CONDITIONAL  MARRIAGE 

1.°    NATURE  AND  SPECIES  OF   CONDITIONS 

218.  (a)  A  condition  in  a  contract  is  a  circum- 
stance to  which  the  consent  is  attached,  and  on  which 
the  value  of  the  contract  depends.     This  may  be  in 
two  ways:  (1)   The  fulfilment  of  the  condition  may 
put  an  end  to  the  contract;  we  have  then  a  voiding 
condition.     Or  (2)  the  fulfilment  of  the  condition 
may  cause  the  contract,  held  in  suspense  till  then,  to 
have  its  effect :  This  is  a  suspensive  condition. 

In  relation  to  a  contract  which  is  indissoluble,  like 
marriage,  there  can  be  no  question  of  voiding  condi- 
tions. 

219.  (&)  A  condition  differs  from  a  mode,  cause, 
interpretative  intention,  or  antecedent  error.  A  mode 
is  an  "accessory  and  supervenient  clause  added  to 
the  contract  already  constituted"  ;  it  is  not  part  of  the 
contract,  as  if  persons  would  agree  to  contract  mar- 
riage and  then  add  that  they  will  not  fulfil  some  of 
its  obligations.     The  cause  may  prompt  a  man  to 
consent,  but,  once  he  is  determined,  he  gives  the  con- 
sent absolutely  and  independently  of  the  cause.  Thus, 
a  man  may  marry  a  certain  woman  because  he  thinks 
she  is  honest,  and,  having  no  doubt  about  it,  he  gives 
his  consent  absolutely.     Or  he  may  be  in  such  dis- 
position that  if  the  thought  occurred  to  him  that  she 
may  be  dishonest  he  would  not  marry  her;  but,  in 
reality,  he  does  marry  her,  without  making  his  con- 
sent depend  on  her  being  honest :  We  have  here  only 
an  interpretative  intention.     Or,  again,  a  man  may 
be  convinced  that  marriage  may  be  dissolved  and  con- 


218    THE  MATRIMONIAL  CONSENT 

tract  with  that  conviction,  but  giving  his  consent 
absolutely  without  making  it  depend  on  the  possi- 
bility of  a  divorce.  We  have  here  an  error,  but  not 
a  real  condition. 

A  condition,  to  be  real,  must  have  been  placed 
actually  and  not  in  a  merely  interpretative  manner; 
it  must  be  an  integral  part  of  the  contract,  the  con- 
sent must  be  attached  to  it  and  depend  upon  it. 

220.  (c)   Conditions  may  be  honest  or  immoral 
and  leading  to  sin ;  possible  or  impossible,  repugnant 
to  the  substance  of  the  marriage  contract ;  past,  pres- 
ent, or  future;  contingent  or  necessary,  that  is,  con- 
cerning a  future  and  uncertain  event,  or  one  which 
is  already  past,  or  a  future  one  which  is  already  cer- 
tain.     Strictly     speaking,     conditions     concerning 
events  which  are  past,  present,  or  necessary,  i.e., 
future,  but  already  certain,  are  not  real  conditions, 
since  they  do  not  suspend  the  consent.     They  are, 
however,  spoken  of  as  conditions  because,  for  us,  who 
may  often  be  not  sure  of  their  fulfilment,  they  prac- 
tically do  hold  the  contract  in  suspense  or  render  it 
doubtful. 

2.°  ANCIENT  LEGISLATION 

221.  In  the  early  marriage  legislation,  as  in  the 
Roman  law,  there  is  no  question  of  conditional  mar- 
riages, probably  because  they  rarely  occurred,  if  at 
all.     The  first  time  a  condition  is  mentioned,  it  is 
to  declare  it  of  no  value,     (c.  7,  8,  c.  xxvii,  q.  2.) 
It  seemed  logical  to  conclude  that  since  marriage,  as 
distinct  from  betrothal,  ought  to  be  contracted  per 
verba  de  prcesenti,  its  validity  should  not  be  made 


CONDITIONAL  MARRIAGE        219 

to  depend  on  a  future  event,  and  that  either  it  was 
contracted  absolutely,  or  remained  a  mere  engage- 
ment. The  argument,  however,  was  not  found  con- 
clusive, and  the  doctrine  of  conditional  marriages  re- 
ceived official  recognition  in  the  Decretals  of  Gregory 
IX,  in  which  a  special  title  is  devoted  to  the  subject, 
(lib.  iv,  tit.  v,  De  conditionibus  appositis  in  de- 
sponsationibus.)  The  great  theologians  of  the  thir- 
teenth century,  St.  Thomas  (Summa  Theologica, 
pars  3*  supp.,  q.  xlvii,  art.  5)  and  St.  Bonaventure, 
set  forth  in  details  the  theory  of  conditional  consent, 
which  was  now  accepted  by  all. 

The  Council  of  Trent  has  no  special  decree  on  that 
point,  but  the  one  on  the  form  of  marriage  which 
aimed  at  doing  away  with  clandestine  marriages 
seemed  to  strike  also  at  the  conditional  contracts, 
which,  taking  place  really  when  the  condition  is  ful- 
filled and  not  when  they  are  celebrated  before  the 
priest,  would  not  satisfy  the  conciliar  requirements. 
But  canonists  found  a  solution  for  that  difficulty, 
and  conditional  marriages  continued  to  be  held  as 
valid;  still,  they  became  less  common;  ordinarily 
they  were  not  permitted  except  for  a  grave  cause,  and 
in  modern  times  Bishops  reserved  to  themselves  the 
right  to  decide  when  the  cause  was  sufficient.  (Es- 
mein,  vol.  i,  pp.  171-178;  vol.  ii,  pp.  216-218.)  In 
the  Greek  Church  it  is  not  the  practice  to  con- 
tract marriage  conditionally,  nor  in  the  Protestant 
churches.  Modern  civil  legislations  generally  do  not 
recognize  conditional  marriages.  (Wernz,  n.  294, 
306.) 


220    THE  MATRIMONIAL  CONSENT 

3.°  PBESENT  LEGISLATION 

Can.  1092.  Conditio  semel  apposita  et  non  revo- 
cata: 

1.°  Si  sit  de  future  necessaria  vel  impossibilis  vel 
turpis,  sed  non  contra  matrimonii  substantiam,  pro 
non  adjecta  habeatur; 

2.°  Si  de  future  contra  matrimonii  substantiam, 
illud  reddit  invalidum; 

3.°  Si  de  future  licita,  valorem  matrimonii  sus- 
pendit ; 

4.°  Si  de  praeterito  vel  de  praesenti,  matrimo- 
nium  erit  validum  vel  non,  prout  id  quod  condi- 
tion! subest,  exsistit  vel  non. 

222.  When  a  condition  has  been  placed  to  the 
consent  and  not  withdrawn: 

1.°  If  it  concerns  the  future  and  is  necessary 
or  impossible  or  dishonest,  but  not  contrary  to 
the  substance  of  marriage,  it  is  considered  as 
non-existing ; 

2.°  If  it  concerns  the  future  and  is  against 
the  substance  of  marriage,  it  invalidates  the 
marriage. 

3.°  If  it  concerns  the  future  and  is  honest,  it 
suspends  the  marriage. 

4.°  If  it  concerns  the  past  or  the  present,  the 
marriage  is  valid  or  not  according  as  the  con- 
dition is  fulfilled  or  not. 

This  canon  sums  up  with  greater  precision  the 
legislation  in  vigor  for  several  centuries,  and  is  little 
more  than  the  application  of  the  natural  law. 

Conditions  are  divided  here  into  several  categories : 
That  on  which  the  matrimonial  consent  is  conditioned 


CONDITIONAL  MARRIAGE         221 

or  made  to  depend  may  be  something  past,  present, 
or  future.  If  it  is  something  future,  it  may  be  neces- 
sary, that  is,  bound  to  come  and  already  certain  in 
itself;  or  impossible;  or  dishonest  without  being 
contrary  to  the  substance  of  the  marriage ;  or  it  may 
be  contrary  to  it;  or  it  may  be  something  lawful. 

223.  1.°  If  the  consent  is  conditioned  on.  some- 
thing past  or  present,  the  marriage  is  valid  or  not 
according  as  the  condition  is  verified  or  not.     This 
rule  is  general  and  no  distinction  is  made  here  be- 
tween  conditions   which    are   impossible,   unlawful, 
etc.,  as  long  as  they  are  past  or  present. 

224.  2.°  When  the  consent  is  conditioned  on  some- 
thing future,  several  distinctions  have  to  be  made; 
future  conditions  are  divided  into  three  categories : 

(a)  To  the  first  category  belong  those  conditions 
the  object  of  which  is  something  necessary,  impos- 
sible, or  dishonest,  but  not  contrary  to  the  substance 
of  marriage. 

Necessary  conditions  are  here  assimilated  to  the 
impossible  ones,  which  was  ordinarily  not  done  by 
ancient  canonists ;  and  whether  the  parties  know  the 
real  nature  of  the  condition  and  its  effect  on  the  con- 
tract the  result  will  be  the  same.  (Reiffenstuel,  n. 
45 ;  Schmalzgruber,  n.  72ff. ;  Gasparri,  844,  853, 
865ff.;  Wernz,  n.  300,  note.) 

The  validity  of  the  marriage  contracted  with  one 
of  those  conditions  will,  objectively,  depend  on  the 
reality  of  the  condition  and  its  realization;  but  the 
law,  wishing  to  favor  marriage  and  to  restrict  the 
cases  of  nullity,  presumes  that  the  condition  did  not 
exist  or  was  not  meant  seriously,  and  that,  therefore, 


222    THE  MATRIMONIAL  CONSENT 

the  marriage  is  valid  from  the  beginning.  But  this 
is  a  presumption  juris,  not  one  of  those  which  admit 
of  no  proof  to  the  contrary;  it  could  not  be,  for  the 
Church  can  not  supply  a  consent  which  is  wanting, 
and  she  does  not  wish  to  treat  as  valid  a  marriage 
which  is  null.  If,  then,  it  is  certain,  from  the  con- 
fession of  the  parties  in  the  internal  forum,  or  from 
circumstances  in  the  external  forum  that  the  consent 
was  truly  made  to  depend  on  the  condition,  we  have 
to  see  whether  the  condition  is  realized  or  not.  If 
it  is  impossible,  the  contract  is  null;  if  necessary, 
the  contract  is  valid  at  once;  if  it  was  immoral  and 
is  not  yet  fulfilled,  the  contract  is  at  least  suspended ; 
there  is  no  obligation,  or  even  right,  to  fulfil  the  con- 
dition, nor  to  wait  for  its  fulfilment,  but  if  it  hap- 
pened to  become  fulfilled  the  contract  would  hold. 
(Gasparri,  n.  853;  Wernz,  n.  300,  not  so  positively.) 
225.  (&)  When  conditions  concern  a  future  and 
contingent  event,  possible  and  honest,  the  marriage 
remains  in  suspense  until  fulfilment. 

(1)  If  one  of  the  parties  would  revoke  his  consent 
the  subsequent  verification  of  the  condition  would  be 
of  no  effect,  for  the  two  consents  must  exist  at  the 
moment  the  contract  is  actually  completed ;  the  same 
would  be  true  if  one  would  lose  the  use  of  reason. 
The  presumption  juris  et  de  jure  that  consummation 
of  the  marriage  implies  withdrawal  of  the  condition 
has  probably  not  been  abolished.     (Wernz,  n.  298 ; 
De  Smet,  n.  87.) 

(2)  If  the  condition  is  not  fulfilled,  nor  with- 
drawn, there  is  no  marriage. 


CONDITIONAL  MARRIAGE        223 

(3)  Once  the  condition  is  fulfilled,  the  contract  is 
complete  without  notifying  the  parish  priest  or  the 
witnesses.  The  formalities  prescribed  for  marriage 
have  to  be  observed  only  when  it  is  celebrated.  If, 
however,  the  condition  was  to  obtain  a  dispensation 
from  the  Holy  See,  the  parties  are  required  to  renew 
their  consent  when  the  dispensation  is  applied  to 
them.  In  order  that  the  validity  of  the  marriage 
may  not  be  questioned  in  the  external  forum,  proofs 
of  the  fulfilment  of  the  condition  should  be  had  if 
the  existence  of  the  condition  was  publicly  known. 

226.  (c)  A  condition  which  is  repugnant  to  the 
substance   of  the   matrimonial   contract   renders   it 
invalid  by  the  law  of  nature  itself,  supposing  that  it 
is  a  real  condition,  because  in  that  case  there  is  no 
true  matrimonial  consent — one  of  its  essential  ele- 
ments is  excluded. 

Conditions  are  really  repugnant  to  the  substance 
of  marriage  when  they  are  inconsistent  with  the 
essential  object  of  the  marriage  contract  or  destruc- 
tive of  one  of  its  essential  properties. 

The  object  of  the  marriage  contract  is  the  mutual 
right  and  obligation  of  the  spouses  to  generative  rela- 
tions; its  essential  properties  are  unity,  which 
includes  fidelity,  indissolubility,  and  sacramental 
dignity.  Hence : 

227.  (1)  To  contract  marriage  on  condition  that 
there  will  be  no  children  or  a  limited  number,  if  it 
means  that  the  spouses  do  not  give  to  each  other  the 
right  to  the  acts  apt  for  the  generation  of  children,  or 
that  these  rights  are  transferred  only  for  a  limited 
time,  is  to  place  a  condition  which  is  contrary  to  the 


224    THE  MATRIMONIAL  CONSENT 

essential  object  of  the  marriage  contract  and  annuls 
it.  If  it  meant  that  the  rights  are  transferred  but 
they  will  not  be  used,  we  would  be  in  presence,  not 
of  a  condition  forming  an  integral  part  of  the  mar- 
riage contract,  as  in  the  previous  supposition,  but 
only  of  an  accessory  modification  of  it.  The  right 
to  the  marital  relations  is  essential,  the  actual  use 
of  it  is  not. 

228.  (2)  Marriage  contracted  under  condition  of 
practising  onanism  will  be  null  or  invalid  in  the  same 
manner,  according  as  this  will  be  a  true  condition 
or  only  a  modal  clause,  a  refusal  of  the  right  to  gen- 
erative relations  or  merely  an  intention  of  not  ful- 
filling obligations  really  assumed. 

(3)  The  condition  that  the  offspring  will  not  be 
allowed  to  be  born  alive,  that  drugs  of  sterility  will 
be  taken,  is  also  against  the  substance  of  marriage, 
the  primary  purpose  of  which  is  the  procreation  of 
children;  and  if  it  became  part  of  the  contract,  that 
is,  if  the  party  or  parties  meant  to  reserve  that  right 
in  the  contract,  the  marriage  would  be  null.  Condi- 
tions against  the  moral  good  of  the  children — v.  g., 
bringing  them  up  in  heresy — although  sinful,  are  not 
considered  as  repugnant  to  the  substance  of  mar- 
riage, because  the  education  of  children  is  not  so  es- 
sentially and  immediately  the  end  of  matrimony. 
Still,  if  one  of  the  parties  made  his  consent  depend  on 
the  condition  that  the  other  will  assume  the  obligation 
of  bringing  up  the  children- in  heresy,  as  that  obliga- 
tion can  not  exist,  the  contract  would  be  null  because 
of  an  impossible  condition. 


CONDITIONAL  MARRIAGE         225 

229.  (4)  Marriage  contracted  under  the  condition 
of  not  receiving  the  sacrament,  not  being  bound  ab- 
solutely and  forever,  retaining  a  right  to  relations 
with  other  parties,  is  invalid  whenever  the  condition 
is  part  of  the  contract,  not  simply  an  interpretative 
intention,  an  error  in  the  mind,  an  accessory  clause. 
It  is  a  part  of  the  contract  when  it  implies  reserving 
a  right,  like  that  of  dissolving  the  marriage  in  case  of 
adultery.     Some  canonists  distinguish  between  the 
conditions  which  are  against  the  good  of  fidelity  and 
the  offspring,  and  those  which  are  against  the  good  of 
the  sacrament  or  the  indissolubility  of  the  bond.   The 
former  fcre  not  contrary  to  the  substance  of  matri- 
mony and  do  not  nullify  it  unless  they  are  set  down 
as  a  pact,  in  pactum  deductce;  the  latter  render  the 
marriage  null  even  if  they  are  net  introduced  into 
the  pact,  because  they  are  directly,  immediately,  of 
their  inherent  force   contrary   to  the  substance   of 
matrimony.     (Wernz,  n.  302,  note  44.) 

230.  In  practice,  however,  It  will  be  difficult,  if 
not  impossible,  to  prove  that  a  party  by  a  positive  and 
not  an  interpretative  intention  gave  his  consent  to 
only  a  dissoluble  union  unless  it  be  proved  that  the 
intention  was  introduced  into  the  pact  or  made  a 
strict  condition.    In  those  cases  there  exist  generally 
in  the  mind  of  the  contracting  party  two  contrary 
intentions — the  general  intention  of  contracting  a 
real  marriage,  which  means  an  indissoluble  one,  and 
a  particular  intention  of  not  binding  one's  self  abso- 
lutely and  forever.     The  marriage  will  be  valid  or 
null  according  as  it  will  be  the  general  or  particular 
intention  that  will  prevail;  and,  according  to  Bene- 


226    THE  MATRIMONIAL  CONSENT 

diet  XIV,  the  general  intention  prevails  unless  the 
particular  one  is  expressly  laid  down,  made  a  real 
condition.  (De  Syn.,  lib.  xii,  c.  22,  n.  7.)  When 
it  has  ceased  to  be  a  theoretical  error  to  become  a 
suspensive  condition  may  be  judged  from  circum- 
stances, from  the  declaration  of  the  parties,  the  mo- 
tives that  prompted  them,  and  also  from  the  ritual 
form  used  in  some  sects  and  the  interpretation  com- 
monly put  upon  it.  (Inst.  S.  C.  Inq.,  April  6,  1843 ; 
Dec.  9,  1874,  to  the  Bishop  of  St.  Albert,  Canada; 
1877,  to  the  Bishop  of  Nesqually.) 

The  existence  of  a  real  condition  contrary  to  the 
substance  of  marriage  is  often  very  difficult  to  prove. 
De  Lugo  states  that  if  both  parties  placed  the  condi- 
tion and  both  affirm  it,  nothing  more  will  be  required 
to  declare  the  marriage  null  in  foro  externo,  unless 
there  be  presumption  of  collusion.  (Gasparri,  n. 
860-864;  Oregonopolitana,  A.  A.  S.,  Oct.,  1914,  p. 
516  seq. ;  Neo-Eboracensis,  A.  A.  S.  June,  1915,  p. 
292  seq.) 

VIII.   CONSENT  IN  INVALID  MARRIAGE 

Can.  1093.  Etsi  matrimonium  invalide  ratione  im- 
pediment! initum  fuerit,  consensus  praestitus  prae- 
sumitur  perseverare,  donee  de  ejus  revocatione  con- 
stiterit. 

231.  Although  marriage  be  invalid  because  of 
an  impediment,  the  consent  once  given  is  pre- 
sumed to  persevere  unless  its  revocation  be 
proved. 


CONSENT  IN  INVALID  MARRIAGE  227 

It  is  supposed  that  the  consent  was  valid  in  itself 
but  remained  without  effect  because  of  an  impedi- 
ment. Unless  it  is  revoked,  and  revocation  is  a  fact 
not  to  be  presumed  but  proved,  it  will  continue  and 
be  able  to  produce  its  effect  when  the  obstacle  is  re- 
moved, as  in  cases  of  dispensation  in  radice. 


A.   Former  Discipline 

232.  1.  "From  the  beginning  of  Christian  society 
the  marriage  of  its  members  was  looked  upon  as  a 
public  religious  act,  subject  to  ecclesiastical  control." 
(Tertullian,  De  Monog.,  c.  11 ;  De  Pudi.,  c.  4.)  The 
obligation  of  making  known  to  the  Bishop  all  pro- 
posed marriages  dates  as  far  back  as  the  beginning  of 
the  second  century.  (St.  Ignatius  ad  Polyc.,  c.  5.) 
It  was  not  doubted  that  marriage,  although  a  sacra- 
ment, is  also  a  contract,  and  that  all  the  essential 
elements  of  a  contract  are  found  in  the  consent  of 
the  parties;  but  even  for  consensual  contracts  a  cer- 
tain form  may  be  prescribed  by  the  positive  law. 
Nor  was  it  forgotten  that  to  marry  is  a  right  which 
every  man  receives  from  nature.  On  the  contrary, 
the  ecclesiastical  legislation  always  aimed  at  facilitat- 
ing the  exercise  of  that  right  as  much  as  possible. 
But  it  was  remembered,  on  the  other  hand,  that  mar- 
riage is  a  social  function  also.  Its  primary  end  is 
not  the  satisfaction  of  individual  needs  or  desires,  but 
the  propagation  of  the  species  and  the  preservation 
of  society.  The  good  of  society  and  of  the  family,  as 
well  as  that  of  the  individual,  depends  on  marriage ; 
they  are  interested,  therefore,  in  its  proper  regula- 
tions, and  should  have  the  right  to  exercise  some  con- 
trol over  it.  Hence  the  ceremonies  and  rites  of  vary- 
ing solemnity  which,  by  custom  or  law,  accompanied, 
among  all  peoples,  the  celebration  of  marriage.  The 

229 


230        THE  FORM  OF  MARRIAGE 

Christian  Church,  for  whom  marriage  is  also  a  sacra- 
ment, could  not  remain  indifferent  to  what  concerns 
it,  nor  approve  its  celebration  without  some  interven- 
tion on  her  part. 

The  denunciations  of  Tertullian  against  clandestine 
marriages  would  almost  lead  one  to  conclude  that  in 
his  time  they  were  invalid.  There  is  no  other  proof 
of  this,  but  it  can  not  be  doubted  that  they  were 
strictly  forbidden.  That  prohibition  was  frequently 
renewed  by  provincial  Councils,  particularly  after 
the  eighth  century.  As  an  additional  measure  the 
Fourth  Lateran  Council,  in  1215,  commanded  that 
all  prospective  marriages  be  publicly  announced  in 
church.  But  that  law,  too,  was  disobeyed,  and  mar- 
riages continued  to  be  contracted  secretly,  with  the 
result  that  legitimately  married  parties  could  sepa- 
rate and  enter  another  contract,  which,  although  null, 
was  to  be  held  as  valid  by  the  Church ;  others  lived  in 
concubinage  under  the  cover  of  a  supposed  occult 
marriage. 

233.  2.  To  remedy  those  evils  some  Councils  de- 
cided to  prescribe  a  certain  form  of  marriage,  de- 
manding among  other  things  that  it  be  celebrated  in 
presence  of  the  pastor  and  of  several  witnesses.  But 
that  legislation  was  local  in  character  and,  moreover, 
it  could  be  disregarded  also  and  remain  without  effect 
unless  some  sanction  were  added  to  it.  And  so  when 
a  General  Council  met  at  Trent  for  the  reformation 
of  abuses  in  the  Church,  -the  Fathers  were  petitioned 
and  urged,  especially  by  the  representatives  of  the 
king  of  France,  to  devise  some  means  by  which  the 
great  evil  of  clandestine  marriages  could  be  rooted 


FORMER  DISCIPLINE  231 

out.  All  merely  prohibitive  regulations  had  failed. 
The  only  resource  left,  apparently,  was  to  declare  all 
clandestine  marriages  invalid.  The  measure  was  a 
radical  one  and  met,  at  first,  with  strong  opposition. 
Some  considered  it  as  a  dangerous  novelty,  calculated 
to  multiply  illegitimate  unions  by  curtailing  the 
liberty  of  marriage.  Others  objected  on  doctrinal 
grounds,  as  this  seemed  to  be  changing  the  substance 
of  the  sacrament.  The  great  majority  of  the  Fathers, 
however,  were  in  favor  of  the  reform  and  the  decree 
Tametsi  was  published.  The  somewhat  involved 
wording  of  it  seems  to  reveal  in  its  framers  some 
hesitation  as  to  the  real  nature  of  the  impediment 
they  were  introducing.  But  whatever  the  theoretical 
foundation  of  the  decision,  it  was  clearly  and  explic- 
itly enacted  that  in  future  marriages  would  be  null 
unless  contracted  in  presence  of  the  pastor  and  of  at 
least  two  witnesses. 

It  was  not  to  be  expected  that  the  Tridentine  decree 
would  remove  all  abuses  and  meet  everywhere  with 
the  same  success.  One  great  result  it  has  accom- 
plished— the  almost  total  abolition  of  strictly  occult 
marriages  from  Christian  society.  The  State  has 
imitated  the  Church,  and  marriage  is  rarely  con- 
tracted without  the  intervention,  under  one  form  or 
another,  of  the  social  authority,  civil  or  religious. 

234.  3.  But  the  decree  Tametsi  remained  unpub- 
lished in  many  places;  in  others  its  publication  was 
doubtful;  hence,  lack  of  uniformity,  uncertainties, 
and  the  inconveniences  of  the  ancient  discipline. 
Where  it  was  published  its  application  gave  rise  to 
numerous  difficulties.  It  had  been  interpreted  as  de- 


232         THE  FORM  OF  MARRIAGE 

manding  for  validity  that  the  marriage  be  celebrated 
before  the  parish  priest  of  the  parties.  In  modern 
times,  among  the  moving  population,  particularly  of 
large  cities,  it  had  become  often  difficult  to  find  out 
who  was  the  parish  priest;  numerous  errors  were 
made,  in  good  faith.  This  was  one  of  the  main  rea- 
sons that  prompted  several  Bishops  to  ask  for  a  modi- 
fication of  the  Tridentine  legislation. 

Acceding  to  their  desires,  Pope  Pius  X  had  the 
matter  studied  carefully  and  on  August  2,  1907,  was 
published  the  decree  Ne  temere,  which,  without  in- 
troducing any  essential  change  in  the  existing  dis- 
cipline, regulated  the  form  of  marriage  in  a  manner 
better  adapted  to  present  conditions.  The  new  de- 
cree went  into  effect  at  Easter,  1908.  Its  wisdom 
and  beneficent  efficacy  were  so  well  established  by  an 
experience  of  eight  or  nine  years  that  it  was  em- 
bodied in  the  new  Code  with  hardly  any  modification. 

B.  Present  Legislation 

1.°    GENERAL  PRINCIPLE 

Can.  1094.  Ea  tantum  matrimonia  valida  sunt 
quae  contrahuntur  coram  parocho,  vel  loci  Ordi- 
nario,  vel  sacerdote  ab  alterutro  delegate  et  duobus 
saltern  testibus,  secundum  tamen  regulas  expressas 
in  canonibus  qui  sequuntur,  et  sal  vis  exceptionibus 
de  quibus  in  can.  1098,  1099. 

235.  Only  those  marriages  are  valid  which 
are  contracted  before  the  parish  priest  or  the 
local  Ordinary  or  a  priest  delegated  by  either 
of  them  and  at  least  two  witnesses,  in  accord- 


CONDITIONS  FOR  TEE  VALIDITY  233 

ance  with  the  rules  laid  down  in  the  canons  that 
follow  and  excepting  the  cases  mentioned  in 
can.  1098,  1099. 

Like  the  decree  Tametsi,  this  canon  demands  for 
the  validity  of  marriage  the  presence  of  the  parish 
priest  as  the  official  representative  of  the  Church, 
and  of  two  witnesses ;  but  formerly  personal,  at  least 
in  part,  the  law  has  now  become  exclusively  territor- 
ial. It  is  not  the  pastor  or  Ordinary  of  the  parties 
whose  presence  is  necessary  for  the  validity,  but  the 
pastor  or  Ordinary  of  the  place  in  which  the  marriage 
is  celebrated.  The  intervention  of  the  pastor  in  the 
celebration  of  marriage  is  assimilated  to  the  exercise 
of  external  jurisdiction,  which  is  territorial,  as  dis- 
tinct from  the  jurisdiction  of  the  internal  forum, 
which  has  become  more  and  more  personal. 

2.°    CONDITIONS  FOE  THE  VALIDITY 

Can.  1095.  §  1.  Parochus  et  loci  Ordinarius  valide 
matrimonio  assistant: 

1.°  A  die  tantummodo  adeptae  canonicae  posses- 
sionis  beneficii  ad  normam  can.  334,  §  3,  1444,  §  1, 
vel  initi  officii,  nisi  per  sententiam  fuerint  excom- 
municati  vel  interdicti  vel  suspensi  ab  officio  aut 
tales  declarati; 

2.°  Intra  fines  dumtaxat  sui  territorii;  in  quo 
matrimoniis  nedum  suorum  subditorum,  sed  etiam 
non  subditorum  valide  assistant; 

3.°  Dummodo  neque  vi  neque  metu  gravi  con- 
stricti  requirant  excipiantque  contrahentium  con- 
sensum. 

§  2.  Parochus  et  loci  Ordinarius  qui  matrimonio 
possunt  valide  assistere,  possunt  quoque  alii  sacer- 


234        THE  FORM  OF  MARRIAGE 

doti  licentiam  dare  ut  intra  fines  sui  territorii  mat- 
rimonio  valide  assistat. 

236.  §  1.  The  pastor   and  Ordinary  of  the 
place  validly  assist  at  a  marriage : 

1.°  Only  from  the  day  on  which  they  have 
taken  canonical  possession  of  their  benefice,  in 
accordance  with  can.  334,  §  3 ;  1444,  §  1 ;  or  en- 
tered upon  their  office,  unless  they  have  been, 
by  a  particular  decree,  excommunicated  or  sus- 
pended from  office,  or  declared  to  be  such; 

2.°  Only  within  the  limits  of  their  territory; 
but  in  that  territory  they  assist  validly  at  mar- 
riages not  only  of  their  subjects  but  also  of 
others ; 

3.°  Provided  that  without  being  compelled  to 
do  so,  by  violence  or  grave  fear,  they  ask  and 
receive  the  consent  of  the  parties. 

§  2.  The  pastor  and  Ordinary  of  the  place 
who  may  validly  assist  at  marriage,  may  also 
give  permission  to  another  priest  to  assist 
validly  within  their  territory. 

237.  1.  Under  the  name  of  "Ordinary"  are  in- 
cluded   Bishops,    Vicars-Apostolic,    Vicars-General, 
Prefects-Apostolic,    Vicars-Capitular   and   Adminis- 
trators during  the  vacancy  of  the  See.     (Holy  Office, 
Feb.  20,  1888.)     "By  'pastor'  is  to  be  understood 
not  only  the  priest  who  legitimately  presides  over  a 
parish  which  is  canonically-  erected,  but  also,  in  locali- 
ties where  parishes  are  not  canonically  erected,  the 
priest  to  whom  the  care  of  souls  has  been  legitimately 
entrusted  in  a  determined  district,  and  who  is  assimi- 


CONDITIONS  FOR  THE  VALIDITY  235 

lated  to  a  pastor;  and  also  in  missions  where  the 
territory  has  not  yet  been  perfectly  divided,  every 
priest  generally  deputed  for  the  care  of  souls,  in  any 
station  by  the  superior  of  the  mission" ;  (Ne  temere, 
n.  ii.)  and,  we  may  add,  the  priest,  who,  without 
having  the  title  of  "pastor,"  has  full  charge  of  a 
parish  during  a  prolonged  absence  or  sickness  of  the 
regular  pastor.  Curates  need  a  delegation  from  the 
pastor  or  Ordinary  to  assist  validly  at  marriages. 
It  may  be  given  them  for  particular  cases  or  for  all 
marriages  in  the  parish. 

2.  The  Ordinary  and  pastor  may  validly  assist  at 
marriages,  not  from  the  day  of  their  election  or 
appointment,  but,  for  the  Bishop,  from  the  day  he 
takes  formal  possession  of  his  diocese,  personally  or 
by  proxy;  and  for  the  pastor,  Vicar-General,  Vicar- 
Capitular,  etc.,  from  the  day  of  their  installation ;  or, 
if  there  is  no  formal  installation,  from  the  day  they 
begin  the  exercise  of  their  office. 

238.  3.  They  lose  their  authority  when  their  pos- 
session of  the  office  to  which  it  is  attached  comes  to 
an  end,  by  translation,  removal,  resignation,  etc., 
and  also  by  those  causes  which  suspend  the  exercise 
of  external  jurisdiction;  viz.,  excommunication  or 
suspension  from  office  pronounced  or  denounced  by 
special  sentence.  Not  all  censures  produce  that 
effect,  but  only  those  which  are  mentioned  here  and 
have  all  the  required  conditions,  for  we  are  in  materiel 
odiosa.  Interdict  is  not  mentioned,  nor  irregularity ; 
the  suspension  is  the  suspension  from  office,  not  from 
benefice  or  from  sacred  functions.  Nor  would  it  be 
sufficient  to  have  incurred  a  secret  or  even  public 


236         THE  FORM  OF  MARRIAGE 

excommunication  or  suspension;  it  is  necessary  that 
the  censure  should  have  been  inflicted,  or  that  it 
should  be  denounced  by  sentence  of  the  judge. 

239.  4.  Ordinaries  and  pastors  can  validly  assist 
at  all  marriages  contracted  within  their  territory, 
whoever  the  contracting  parties  may  be. 

This  applies  to  pastors  in  ordinary  conditions,  who 
are  the  only  ones  the  law  can  have  here  in  view. 
But  it  may  be  supposed  that  nothing  is  changed  in 
regard  to  those  whose  situation  is  exceptional  and 
jurisdiction  personal,  by  the  very  nature  of  the  case. 

In  explaining  the  decree  Ne  temere  the  Congrega- 
tion of  the  Holy  Office,  February  1,  1908,  distin- 
guished four  special  classes  of  parish  priests : 

(a)  Those  who  have  no  territory  at  all  but  who, 
like  military  chaplains,  exercise  their  jurisdiction 
directly  over  persons,  following  them  wherever  they 
go.  It  was  declared  that  nothing  had  been  changed 
in  regard  to  military  chaplains ;  they  may  validly 
assist  at  the  marriage  of  their  subjects  in  any  place, 
but  not  at  the  marriage  of  any  other  person,  even  in 
their  military  chapel  or  church.  Their  subjects  may, 
however,  validly  contract  marriage  before  any  pastor, 
in  his  territory,  unless  the  chaplains  have  been 
granted  exclusive  jurisdiction,  as  has  been  the  case 
in  Germany  for  a  number  of  years.  (Nouvelle  Re- 
vue Theologique,  Mai,  1908,  p.  290.) 

240.  (&)  Parish  priests  who  have  no  territory  ex- 
clusively their  own,  but  one~  in  common  with  another 
or  other  pastors.    They  can  validly  assist  at  all  mar- 
riages within  that  territory. 


CONDITIONS  FOR  TEE  VALIDITY  237 

(c)  Parish  priests  who  have  charge  of  certain  per- 
sons or  families  within  a  territory  assigned  to  other 
pastors.     This  is  ordinarily  the  case  with  pastors  of 
national  churches  in  American  cities.      They  can 
assist  validly  at  the  marriage  of  their  subjects  in  the 
territory,  but  not  at  the  marriage  of  strangers.   Their 
subjects  may  validly  contract  marriage  before  any 
other  pastor. 

(d)  Priests  in  charge  of  institutions,  like  colleges, 
hospitals,    etc.,    which    are   exempt   from   parochial 
jurisdiction.     If  it  is  certain  that  they  have  received 
full  parochial  powers,  which  is  not  to  be  presumed 
without  proof,  they  may  assist  at  the  marriage  of 
persons  who  are  in  their  care,  but  only  in  the  place 
in  which  they  exercise  their  office.     (A.  A.  S.,  Feb., 
1908,   p.   92-111;    Canoniste   Contemporain,   Mars, 
1908,  p.  133 ;  N.  R.  T.,  Mai,  1908,  p.  289.) 

241.  5.  Mode  of  assistance.  Under  the  law  of 
Trent  it  was  enough  for  the  priest  to  be  present  and 
understand  that  the  parties  exchanged  consents, 
whether  he  was  a  willing  witness  or  not,  whether  he 
was  present  by  mere  accident  or  preconcerted  ar- 
rangement. Now,  -passive,  unwilling  presence  does 
not  suffice ;  it  must  be  active,  free. 

(a)  The  parish  priest  must  not  be  constrained  by 
fear  or  violence.  Such  fear,  to  render  his  assistance 
invalid,  must  be  grave.  Must  it  be  unjust  also  ?  It 
would  seem  so,  but  the  text  does  not  state  it  explicitly, 
from  which  some  have  concluded  that  it  is  not  neces- 
sary. (Besson,  K  R.  T.,  Fev.,  1908,  p.  34;  contra, 
De  Becker,  Legislatio  nova,  p.  42.)  Fraud  and  de- 
ceit are  not  mentioned  as  affecting  the  validity. 


238        THE  FORM  OF  MARRIAGE 

(&)  The  pastor  must  ask  and  receive  the  consent. 
Receiving  it  would  not  suffice;  a  positive  act  is  re- 
quired of  him,  active  assistance  even  at  mixed  mar- 
riages. What  is  said  here  of  the  priest  as  a  qualified 
witness  applies  only  to  him,  not  to  the  other  wit- 
nesses ;  nothing  is  changed  in  regard  to  them ;  passive 
presence  continues  to  suffice  and  no  special  qualifica- 
tions are  required  in  them. 

3.°    AUTHOBIZATION  TO  ASSIST  AT  MABBIAGB8 

Can.  1096.  §  1.  Licentia  assistendi  matrimonio  con- 
cessa  ad  normam  can.  1095,  §  2,  dari  expresse  debet 
sacerdoti  determinate  ad  matrimonium  determina- 
tum,  exclusis  quibuslibet  delegationibus  generali- 
bus,  nisi  agatur  de  vicariis  cooperatoribus  pro  pa- 
roecia  cui  addicti  sunt ;  secus  irrita  est. 

§  2.  Parochus  vel  loci  Ordinarius  licentiam  ne 
concedat,  nisi  expletis  omnibus  quae  jus  constituit 
pro  libertate  status  comprobanda. 

242.  §  1.  The  permission  to  assist  at  a  mar- 
riage granted  in  accordance  with  the  prescrip- 
tions of  can.  1095,  §  2,  must  be  given  expressly, 
to  a  priest  specified,  for  a  determined  marriage, 
to  the  exclusion  of  general  delegations,  except 
in  the  case  of  assistant  pastors  for  the  parishes 
to  which  they  are  attached ;  otherwise  the  per- 
mission is  invalid. 

§  2.  The  pastor  or  "Ordinary  of  the  place 
must  grant  that  permission  only  after  he  has 
complied  with  all  that  the  law  requires  to  ascer- 
tain the  freedom  of  the  parties. 


AUTHORIZATION  TO  ASSIST      239 

1.  The  pastor  or  Ordinary  who  has  authority  to 
assist  at  marriages  can  communicate  it  to  others.  That 
communication,  which  is  not  called  delegation,  but 
permission,  because  there  is  no  power  of  jurisdiction 
exercised  here,  must  be  made  expressly  and  really. 
Presumed  or  tacit  permission,  which  was  considered 
as  probably  sufficient  before,  would  now  certainly 
be  null. 

2.  The  permission  must  be  given  to  a  priest,  not  to 
a  simple  cleric,  to  a  priest  specified  and  determined ; 
not  that  he  should  necessarily  be  mentioned  by  name, 
but  he  should  be  so  designated  by  his  office  or  other- 
wise, that  there  be  no  doubt  as  to  who  is  meant. 

243.  3.  The  permission  must  be  given  for  particu- 
lar definite  cases.  Assistant  pastors  may  be  author- 
ized to  assist  at  all  the  marriages  in  the  parish,  but 
outside  of  that  case  general  permissions  are  null. 
An  Ordinary  can  not  give  authority  to  a  priest  to 
assist  validly  at  marriages  in  the  whole  diocese ;  nor 
could  a  pastor  give  it  for  all  marriages  in  his  parish. 
This  is  a  change  in  the  existing  legislation. 

4.  Even  when  the  pastor  or  Ordinary  of  the  place 
is  not  to  assist  himself  at  the  marriage  of  one  of  his 
subjects,  it  remains  his  duty  to  make  the  prescribed 
investigations  before  the  marriage,  publish  the 
banns,  etc. 

4.°     CONDITIONS   FOB  THE   LAWFUL   ASSISTANCE    AT 
MARRIAGE 

Can.  1097  §  i.  Parochus  autem  vel  loci  Ordinarius 
matrimonio  licite  assistunt: 


240        THE  FORM  OF  MARRIAGE 

1.°  Constito  sibi  legitime  de  libero  statu  contra- 
hentium  ad  normam  juris; 

2.°  Constito  insuper  de  domicilio  vel  quasi-domi- 
cilio  vel  menstrua  commoratione  aut,  si  de  vago 
agatur,  actuali  commoratione  alterutrius  contrahen- 
tis  in  loco  matrimonii; 

3.°  Habita,  si  conditiones  deficiant  de  quibus  n.  2, 
licentia  parochi  vel  Ordinarii  domicilii  vel  quasi- 
domicilii  aut  menstruae  commorationis  alterutrius 
contrahentis,  nisi  vel  de  vagis  actu  itinerantibus  res 
sit,  qui  nullibi  commorationis  sedem  habent,  vel 
gravis  necessitas  intercedat  quae  a  licentia  petenda 
excuset. 

§  2.  In  quolibet  casu  pro  regula  habeatur  ut  mat- 
rimonium  coram  sponsae  parocho  celebretur,  nisi 
justa  causa  excuset;  matrimonia  autem  catholi co- 
rum  mixti  ritus,  nisi  aliud  particular!  jure  cautum 
sit,  in  ritu  viri  et  coram  ejusdem  parocho  sunt  cele- 
branda. 

§  3.  Parochus  qui  sine  licentia  jure  requisita  mat- 
rimonio  assistit,  emolumenta  stolae  non  facit  sua, 
eaque  proprio  contrahentium  parocho  remittat. 

244.  §  1.  The  pastor  or  Ordinary  of  the  place 
lawfully  assist  at  a  marriage : 

1.°  After  duly  ascertaining  the  freedom  of 
the  parties,  in  accordance  with  the  prescrip- 
tions of  law; 

2.°  After  ascertaining,  moreover,  that  one  of 
the  contracting  parties  has  a  domicile  or  quasi- 
domicile  or  monthly  residence,  or,  if  it  is  ques- 
tion of  a  vagus,  actual  residence  at  present  in 
the  place  of  the  marriage ; 


CONDITIONS  FOR  ASSISTANCE    241 

3.°  Having  obtained,  if  the  conditions  men- 
tioned in  n.  2  are  not  fulfilled,  permission  from 
the  pastor  or  Ordinary  of  the  domicile,  quasi- 
domicile,  or  monthly  residence  of  one  of  the 
contracting  parties,  unless  it  be  question  of 
those  vagi  who  are  actually  traveling  and  have 
no  residence  in  any  place,  or  unless  a  grave 
necessity  excuses  from  obtaining  the  permis- 
sion. 

§  2.  In  every  case  the  rule  shall  be  that  the 
marriage  is  celebrated  before  the  pastor  of  the 
bride,  unless  a  just  cause  excuses  from  it ;  mar- 
riages between  Catholics  of  different  rites  are 
to  be  celebrated  in  the  rite  of  the  bridegroom 
unless  ordained  otherwise  by  particular  law. 

§  3.  A  pastor  who  assists  at  a  marriage 
without  the  required  permission  acquires  no 
right  to  the  stole  fee  and  shall  return  it  to  the 
pastor  of  the  contracting  parties. 

245.  1.  The  first  condition  for  being  permitted  to 
proceed  to  the  celebration  of  a  marriage  is  to  have 
complied  with  all  the  prescriptions  of  the  law  for 
ascertaining  the  freedom  of  the  parties  to  marry. 

2.  Regularly  people  should  contract  marriage  in 
the  place  of  their  domicile,  quasi-domicile,  monthly 
residence,  or  actual  residence  if  they  are  vagi;  and 
they  should  be  married  by  their  pastor  or  Ordinary, 
or  the  pastor  of  one  of  them.  The  new  law  does  not 
intend  to  take  away  from  parish  priests  any  of  their 
former  rights  in  this  matter,  only  it  does  not  make 
the  presence  of  the  parish  priest  of  the  parties,  at  the 
marriage,  a  condition  for  its  validity.  Consequently, 


242        THE  FORM  OF  MARRIAGE 

although  a  parish  priest  can  assist  validly  at  any  mar- 
riage celebration  within  his  own  territory,  he  has  no 
right  to  do  so  unless  at  least  one  of  the  parties  has  a 
domicile,  quasi-domicile,  monthly  residence,  or  actual 
residence  if  he  be  vagus,  in  the  parish. 

246.  3.  To  assist  at  the  marriage  of  parties  neither 
of  whom  is  his  subject  in  any  sense,  a  pastor  or  Or- 
dinary ought  to  obtain  permission  from  the  one 
before  whom  the  marriage  should  regularly  be  cele- 
brated. To  this  rule  there  are  two  exceptions:  (a) 
The  vagi  who  have  not  even  a  place  of  actual  resi- 
dence because  they  are  actually  moving  from  one 
place  to  another,  belong  to  no  pastor,  and,  therefore, 
may  go  to  any  one  whom  they  choose.  (&)  A  grave 
necessity  would  dispense  from  obtaining  that  per- 
mission. The  reason  demanded  to  excuse  from  the 
law  is  a  grave  one,  which  supposes  that  the  obligation 
imposed  by  the  law  is  grave  also. 

4.  When  the  parties  belong  to  two  distinct  par- 
ishes, either  pastor  would  be  competent  to  assist  at 
the  marriage,  but  the  rule  is  that  the  pastor  of  the 
bride  should  perform  the  ceremony,  unless  there  be 
a  just  cause,  not  necessarily  a  grave  one.  If  the 
bride  was  a  non-Catholic  this  would,  no  doubt,  be  a 
sufficient  reason  to  give  the  preference  to  the  bride- 
groom's pastor,  unless  diocesan  regulations  ordain 
otherwise.  It  is  explicitly  declared  here  that  when 
the  parties  belong  to  different  rites,  it  is  in  the  bride- 
groom's rite  that  the  marriage  is  to  be  celebrated  and 
in  presence  of  his  pastor,  but  it  is  also  recognized  that 
a  different  rule  may  be  adopted  by  particular  legisla- 
tion. 


CONDITIONS  FOR  ASSISTANCE    243 

247.  5.  The  Council  of  Trent  punished  with  sus- 
pension pastors  who  officiated  at  marriages  without 
proper  authority.       The  present  law  only  declares 
that  they  are  not  entitled  to  the  stole  fees. 

Although  only  pastors  are  mentioned  here  explic- 
itly, this,  no  doubt,  applies  equally  to  all  priests 
who  violate  the  law  in  that  manner. 

The  obligation  to  restore  the  fees  is  one  of  jus- 
tice binding  before  any  sentence  of  the  judge,  since 
it  is  declared  that  no  right  has  been  acquired  to  the 
emolument. 

This  concerns  the  pastors  who  assist  at  a  marriage 
without  the  proper  permission,  that  is,  pastors  assist- 
ing at  the  marriage  of  parties  who  are  not  their 
subjects  in  any  sense,  without  obtaining  the  permis- 
sion which  is  required  in  those  cases.  It  would  not 
seem  to  apply  in  the  case  of  the  pastor  of  the  bride- 
groom performing  the  ceremony  instead  of  that  of 
the  bride. 

The  fee  has  to  be  handed  to  the  proper  pastor  of 
the  contracting  parties.  If  they  belong  to  different 
parishes,  the  fee  would  naturally  go  to  the  bride's 
pastor,  although  this  is  not  stipulated  in  the  law, 
since  he  is  the  one  who  regularly  should  have  offi- 
ciated. If  the  bride  has  a  domicile,  quasi-domicile, 
or  monthly  residence,  the  pastor  of  the  place  of 
domicile  would  seem  to  have  first  claim. 

248.  Note.  The   questions  of  domicile  or  quasi- 
domicile  have  not,   at  present,   in  this  matter  the 
importance  they  had  formerly,  as  the  validity  of  a 
marriage  does  not  depend  on  them;  still,  the  licit- 
ness  does,  and  it  is  the  duty  of  pastor  or  Ordinary 


244         THE  FORM  OF  MARRIAGE 

before  proceeding  to  a  marriage  to  find  out  whether 
the  parties  are  his  subjects,  at  least  one  of  them. 

1.  According  to  can.  94,  book  ii,  every  person's 
pastor  or  Ordinary  is  the  pastor  or  Ordinary  of  the 
place  in  which  that  person  has  his  domicile  or  quasi- 
domicile.     The  pastor  of  the  vagi,  or  of  those  who 
have  neither  domicile  nor  quasi-domicile,  is  the  pas- 
tor of  the  place  in  which  they  actually  reside.    They, 
too,  therefore,  have  their  proper  pastor  and  Ordinary. 

The  pastor  of  those  who  have  no  domicile  or  quasi- 
domicile  in  any  particular  parish,  but  only  in  the 
diocese,  is  the  pastor  of  that  parish  in  which  they 
actually  reside. 

249.  Can.  1097,  2,  mentions  also  monthly  resi- 
dence, together  with  domicile  and  quasi-domicile,  as 
sufficient  for  marriage. 

The  only  persons,  then,  who  belong  to  no  pastor 
and  may  choose  any  one  they  please  for  marriage, 
are  those  vagi  who  have  not  even  what  might  be  called 
a  residence,  sedes  commorationis,  in  any  place. 
(Holy  Office,  March  24,  186Y.) 

2.  According   to   can.    92,   domicile   may  be   ac- 
quired in  a  parish  or  quasi-parish,  or  at  least  in  the 
diocese,  vicariate  apostolic,  prefecture  apostolic,  by 
actual  residence  there  together  with  the  intention  of 
remaining  permanently,  if  nothing  happens  to  call 
elsewhere;  or  also  by  the  mere  fact  of  actual  resi- 
dence for  ten  complete  years.     Quasi-domicile  may 
be  acquired  by  residence  m  the  parish,  diocese,  etc., 
together   with   the  intention  of  remaining  for   the 
greater  part  of  the  year;  or  also  by  the  mere  fact 


EXCEPTIONS  IN  EXTREME  CASES  245 

of  actual  residence  in  the  place  for  the  greater  part 
of  the  year. 

Thus  there  are  two  ways,  under  the  present  law, 
of  acquiring  a  domicile  or  quasi-domicile ;  and  both 
may  be  acquired  in  a  diocese  without  being  acquired 
in  any  particular  parish ;  for  example,  at  present  a 
man  who  would  reside  for  ten  years  in  different 
parishes  in  the  same  diocese,  would  have  a  diocesan, 
although  not  a  parochial,  domicile. 

250.  3.  Domicile  or  quasi-domicile  is  lost  by  leav- 
ing the  place  without  intention  of  returning,  except 
in  the  case  of  minors  who  retain  the  domicile  of  those 
under  whose  authority  they  are,  i.e.,  their  father  or, 
in  his  default,  their  mother  or  guardian ;  they  may, 
however,  once  they  have  completed  their  seventh 
year,  acquire  a  quasi-domicile  of  their  own. 

5.°  EXCEPTIONS:  IN  CASES  OF  DANGER  OF  DEATH  OB 
OF  URGENT  NECESSITY 

Can.  1098.  Si  haberi  vel  adiri  nequeat  sine  gravi 
incommodo  parochus  vel  Ordinarius  vel  sacerdos 
delegatus  qui  matrimonio  assistant  ad  normam 
canonum  1095,  1096: 

1.°  In  mortis  periculo  validum  et  licitum  est  mat- 
rimunium  contractum  coram  solis  testibus;  et  etiam 
extra  mortis  periculum,  dummodo  prudenter  prae- 
videatur  earn  rerum  conditionem  esse  per  mensem 
duraturam ; 

2.°  In  utroque  casu,  si  praesto  sit  alius  sacerdos 
qui  adesse  possit,  vocari  et,  una  cum  testibus,  mat- 
rimonio assistere  debet,  salva  conjugii  validitate 
coram  solis  testibus. 


251.  If  it  is  impossible  without  grave  incon- 
venience to  send  for  or  go  to  a  pastor  or  Ordi- 
nary or  a  priest  delegated  by  either  of  these  to 
assist  at  a  marriage  in  accordance  with  the 
prescriptions  of  canons  1095,  1096: 

1.°  In  case  of  danger  of  death,  marriage 
will  be  contracted  validly  and  licitly  in  pres- 
ence of  the  witnesses  only;  and  it  will  be  the 
same  outside  of  the  danger  of  death,  provided 
it  be  foreseen  that  this  condition  of  things  is  to 
last  for  a  month. 

252.  2.°  In  both  cases  if  a  priest  could  be 
present  he  should  assist  at  the  marriage  to- 
gether with  the  witnesses,  but  the  marriage 
would  be  valid  in  presence  of  the  witnesses 
alone. 

The  presence  of  the  pastor  may  be  dispensed  with 
in  the  celebration  of  marriage  on  two  conditions 
taken  together:  First,  that  it  is  impossible  to  have 
him ;  secondly,  that  there  is  either  danger  of  death  or 
a  serious  probability  that  the  same  state  of  things  will 
last  for  a  month. 

253.  1.  The  impossibility  is  a  moral  one,  existing 
whenever  the  law  can  not  be  complied  with,  short 
of  grave  inconvenience.     (S.  C.  de  Sac.,  March  12, 
1910.)     The  nature  of  the  inconvenience  is  not  de- 
fined; it  does  not  matter  where  it  comes  from,  nor 
whether  it  affects  the  parties  or  the  priest.    Accord- 
ing to  the  answer  of  the  Congregation  of  the  Sacra- 
ments, March  12,  1910,  ad  3um,  if  the  parties  had 
betaken  themselves  to  a  country  where  they  can 


EXCEPTIONS  IN  EXTREME  CASES  247 

have  no  priest,  for  the  purpose  of  evading  the  law, 
they  would  still  be  dispensed. 

It  must  be  impossible  to  have,  or  to  go  to,  a  com- 
petent priest.  If  the  priest  can  not  come,  the  parties 
should  go  to  him;  if  the  parties  can  not  go  to  their 
pastor  or  Ordinary  or  a  priest  delegated  by  either 
of  these,  they  should  go,  when  possible,  to  another 
pastor  or  Ordinary  who  would  have  authority  in  the 
place  in  which  the  marriage  would  be  celebrated. 
Thus,  they  might  go  to  a  neighboring  pastor  to  be 
married  in  his  parish.  They  would  not  be  obliged 
to  go  to  one  who  has  no  authority  in  the  place. 

A  delegation  should  be  obtained,  if  possible,  but 
one  is  not  bound  to  use  for  that  the  telegraph  or 
telephone. 

254.  Will  a  particular  necessity  suffice? 

Some  canonists  had  interpreted  in  that  sense  Art. 
viii  of  the  decree  Ne  temere  in  spite  of  the  words, 
"if  in  a  district,"  which  seemed  to  refer  to  an  im- 
possibility affecting  a  whole  region.  Their  view 
appeared  to  be  favored  by  the  answer  of  the  Con- 
gregation quoted  above,  March  12,  1910,  ad  lum,  in 
which  the  word  regio,  which  caused  the  difficulty, 
was  omitted.  It  seemed  more  explicitly  confirmed 
by  two  other  decisions  which,  although  not  published 
in  the  A.  A.  S.,  are  of  undoubted  authenticity  (Prop- 
aganda, March  24,  1909 ;  Cong.  Sac.,  Nov.  26,  1909 ; 
apud  Bucceroni,  Theolo.  Mor.,  4th  edit. ;  Eccles. 
Rev.,  Ap.,  1915,  p.  477).  The  first  directs  parish 
priests  to  let  parties  who  can  not  comply  with  the 
prescriptions  of  the  civil  law  contract  marriage  be- 
fore two  witnesses.  The  second  directs  the  Ordinary 


248        THE  FORM  OF  MARRIAGE 

to  allow  parties  to  contract  marriage  without  a  priest 
in  presence  of  two  witnesses  only,  when  the  civil 
law  renders  the  presence  of  the  priest  impossible. 
A.  Lehmkuhl  concluded  from  those  decrees  that 
under  the  Ne  temere  marriage  could  be  contracted 
with  only  the  two  witnesses  whenever  it  was  not 
possible  to  secure  the  presence  of  a  priest,  even  though 
there  would  be  priests  in  the  place  who,  under  ordi- 
nary circumstances,  could  assist  at  the  marriage. 

A  decree  of  the  Congregation  on  the  Discipline  of 
the  Sacraments  of  January  31,  1916,  does  not,  how- 
ever, fully  support  that  conclusion. 

It  was  asked  what  should  be  done  when,  in  those 
countries  in  which  the  civil  law  strictly  forbids  the 
celebration  of  the  religious  before  the  civil  marriage, 
the  civil  marriage  could  not  be  celebrated  and  yet 
the  good  of  souls  would  demand  that  the  parties  be 
married. 

The  answer  was,  to  refer  those  cases  to  Rome, 
except  in  danger  of  death,  when  any  priest  can  dis- 
pense from  the  impediment  of  clandestinity  and 
permit  the  celebration  of  a  marriage  in  presence  of 
two  witnesses.  (A.  A.  S.,  Feb.,  1916,  p.  36;  cf. 
De  Smet,  n.  69 ;  Wernz,  iv,  pars,  i,  p.  300 ;  N.  R.  T., 
1908,  Mar.  152,  Nov.  662-667,  Dec.  733.) 

255.  2.  The  second  condition  is  danger  of  death 
for  at  least  one  of  the  parties  or  danger  of  having 
to  delay  the  marriage  for  a  month. 

(a)  The  danger  of  death  has  not  to  be  very  grave, 
as  in  the  decree  of  1888,  nor  imminent,  as  in  the 
decree  Ne  temere,  but  simply  grave,  that  is,  seriously 
probable ;  and  it  does  not  matter  from  what  causes  it 


THOSE  AFFECTED  BY  TEE  LAW  249 

arises.  Together  with  the  danger  of  death,  the  de- 
cree Ne  temere  demanded  that  marriage  should  be 
necessary  for  the  relief  of  conscience  or  the  legitima- 
tion of  the  offspring.  Henceforth  this  will  not  be 
required. 

256.  (b)  Even  when  there  is  no  danger  of  death, 
parties  may  dispense  with  the  presence  of  the  com- 
petent priest  if  they  would  have  to  wait  for  a  month. 
Under  the  decree  Ne  temere  it  was  required  that 
they  should  have  already  waited  for  a  month.  Cer- 
tainty is  not  necessary;  it  suffices  that  there  be  a 
serious  probability  of  being  unable  to  have  the  pas- 
tor within  a  month.  It  is  added  that  if  the  presence 
of  another  priest  who  would  have  no  special  author- 
ity can  be  secured,  it  ought  to  be  done,  but  this  is 
not  necessary  for  the  validity.  Under  the  Ne  temere 
legislation,  the  presence  of  a  priest  was  always  re- 
quired in  the  case  of  danger  of  death  and  it  was 
not  demanded  at  all  in  the  case  of  necessity. 

6.°    THOSE  WHO  ABE  AFFECTED  BY  THE  LAW 

Can.  1099.  §  1.  Ad  statutam  superius  formam  ser- 
vandam  tenentur: 

1.°  Omnes  in  catholica  Ecclesia  baptizati  et  ad 
earn  ex  haeresi  aut  schismate  conversi,  licet  sive  hi 
sive  illi  ab  eadem  postea  defecerint,  quoties  inter  se 
matrimonium  ineunt; 

2.°  lidem,  de  quibus  supra,  si  cum  acatholicis  sive 
baptizatis  sive  non  baptizatis  etiam  post  obtentam 
dispensationem  ab  impedimento  mixtae  religionis 
vel  disparitatis  cultus  matrimonium  contrahant; 

3.°  Or  lent  ales,  si  cum  latinis  contrahant  hac 
forma  adstrictis. 


250        THE  FORM  OF  MARRIAGE 

§  2.  Firmo  autem  praescripto  §  1,  n.  1,  acatholici 
sive  baptizati  sive  non  baptizati,  si  inter  se  con- 
trahant,  nullibi  tenentur  ad  catholicam  matrimonii 
formam  servandam;  item  ab  acatholicis  nati,  etsi 
in  Ecclesia  catholica  baptizati,  qui  ab  infantili 
aetate  in  haeresi  vel  schismate  aut  infidelitate  vel 
sine  ulla  religione  adoleverunt,  quoties  cum  parte 
acatholica  contraxerint. 

257.  §  1.  The  above  laws  are  binding: 

1.°  On  all  persons  baptized  in  the  Catholio 
Church,  and  on  those  who  have  been  converted 
to  it  from  heresy  or  schism,  even  if  either  the 
latter  or  the  former  have  fallen  away  after- 
wards, whenever  they  contract  marriage  among 
themselves ; 

2.°  Those  laws  are  binding  also  on  the  above- 
mentioned  persons,  if  they  contract  marriage 
with  non-Catholics,  baptized  or  unbaptized, 
even  when  a  dispensation  has  been  obtained 
from  the  impediment  of  mixed  religion  or  dis- 
parity of  worship ; 

3.°  Orientals  are  bound  to  the  prescribed 
form  when  they  contract  with  Latins. 

§  2.  Non-Catholics,  whether  baptized  or  un- 
baptized, who  contract  among  themselves  are 
nowhere  bound  to  observe  the  Catholic  form  of 
marriage;  nor  one  who,  born  of  non-Catholic 
parents,  was  baptized  in  the  Catholic  Church, 
but  grew  up,  from  infancy,  in  heresy,  or  schism, 
or  infidelity,  or  without  any  religion,  if  he  con- 
tracts marriage  with  a  non-Catholic. 


THOSE  AFFECTED  BY  THE  LAW  251 

258.  1.  Catholic    marriages.      Catholics    of    the 
Latin  rite,  when  they  marry  among  themselves,  are 
bound  by  this  law  all  over  the  world.    By  Catholics 
are  meant  all  who  at  any  time  were  acknowledged 
members  of  the  Catholic  Church  by  Baptism  or  by 
conversion:    (a)  persons  baptized  and  educated  in 
the  Catholic  religion  and  never  separated  from  it; 
( b )  persons  baptized  as  Catholics  who  never  practised 
the  Catholic  religion  (the  case  of  one  born  of  infidel 
or  non-Catholic  parents,  baptized  as  a  Catholic  and 
brought  up  from  infancy  in  heresy  or  infidelity  had 
to  be  referred  to  the  Holy  Office  according  to  a  de- 
cree of  March  31,  1916.     The  present  law  considers 
him  as  a  non-Catholic)  ;  (c)  persons  baptized  as  Cath- 
olics, but  who  afterward  have  fallen  away  into  her- 
esy ;  (d)  non-Catholics,  baptized  in  heresy  or  schism, 
converted  to  the  Church  and  fallen  away  again. 

We  should  consider  as  baptized  in  the  Catholic 
Church:  (a)  infants  who,  with  the  consent  of  their 
parents,  are  brought  to  be  baptized  by  a  Catholic 
clergyman,  even  if  the  parents  are  non-Catholics; 
(b)  infants  born  of  Catholic  parents  who  are  bap- 
tized by  a  lay  person  in  case  of  necessity ;  (c)  adults 
who  of  their  own  accord  have  presented  themselves 
to  be  baptized  by  a  Catholic  minister.  "Infants 
baptized  as  non-Catholics,  but  whom  their  convert- 
parents  cause  to  be  brought  up  as  Catholics,  may  be 
considered  as  converts." 

259.  2.  Mixed  marriages.    Catholics  are  bound  by 
this  law  even  when  they  contract  marriage  with  non- 
Catholics.     Because  of  the  unity  of  the  marriage 
contract,  the  law  must  be  binding  on  both  parties 


252        THE  FORM  OF  MARRIAGE 

or  neither.  Under  the  Tridentine  discipline,  if  one 
of  the  parties  was  exempt  he  communicated  the  ex- 
emption to  the  other;  under  the  new  law  it  is  the 
contrary  principle  that  prevails — the  party  who  is 
bound  communicates  his  obligation  to  the  other.  It 
does  not  seem  fitting  that  a  Catholic  should  be  freed 
from  an  obligation  because  he  marries  a  non-Catholic. 
On  the  other  hand,  there  is  nothing  unreasonable 
in  asking  a  non-Catholic  to  conform  to  the  laws  of 
the  Church  if  he  wishes  to  marry  one  of  her 
members. 

An  exception  to  this  rule  had  been  made  by  the 
Holy  See  in  favor  of  Germany,  where  the  provisions 
of  a  previous  constitution  (Provida,  Jan.  18,  1906) 
were  maintained  after  the  decree  Ne  temere;  and  for 
Hungary  by  a  decree  of  the  Congregation  of  the 
Council,  Feb.  27,  1909.  In  those  countries  mixed 
marriages  remained  exempt  from  this  law.  Exten- 
sion of  the  concession  to  Russia  and  Poland  was 
refused  by  the  Congregation  of  the  Council,  July  8, 
1908.  The  exception  was  to  be  restricted  to  mixed 
marriages,  i.e.,  marriages  between  Catholics  and 
baptized  non-Catholics;  and  it  was  officially  inter- 
preted as  applying  only  to  marriages  contracted  in 
Germany  between  parties  who  were  both  natives  of 
Germany,  and  to  marriages  contracted  in  Hungary 
between  parties  who  were  both  natives  of  Hungary. 
(De  Smet,  n.  79.)  The  present  law  mentions  no 
exception. 

260.  3.  Non-Catholic  marriages.  Persons  who 
were  never  members  of  the  Catholic  Church  by  bap- 
tism or  by  conversion  are  nowhere  bound  to  observe 


RITES  TO  BE  OBSERVED         253 

the  formalities  prescribed  for  the  valid  celebration  of 
marriage  when  they  marry  among  themselves. 

7.°    BITES  TO  BE  OBSEBVED 

A.   In  Catholic  Marriages 

Can.  1100.  Extra  casum  necessitates,  in  matrimonii 
celebratione  serventur  ritus  in  libris  ritualibus  ab 
Ecclesia  probatis  praescripti  aut  laudabilibus  con- 
suetudinibus  recepti. 

261.  Outside  of  the  case  of  necessity,  the 
rules  prescribed  in  the  rituals  approved  by  the 
Church,  or  those  which  have  been  introduced 
by  a  laudable  custom,  shall  be  observed  in  the 
celebration  of  marriage. 

Can.  1101.  §  1.  Parochus  curet  ut  sponsi  benedic- 
tionem  sollemnem  accipiant,  quae  dari  eis  potest 
etiam  postquam  diu  vixerint  in  matrimonio,  sed 
solurn  in  Missa,  servata  speciali  rubrica  et  excepto 
tempore  feriato. 

§  2.  Sollemnem  benedictionem  ille  tantum  sacer- 
dos  per  se  ipse  vel  per  alium  dare  potest,  qui  valide 
ct  licite  matrimonio  potest  assistere. 

262.  §  1.  The  pastor  shall  take  care  that  the 
spouses  receive  the  solemn  blessing,  which  may 
be  given  them,  even  after  a  long  time  of  mar- 
ried life,  but  only  during  Mass ;  observing  the 
prescriptions  of  the  rubric  on  that  point  and 
outside  of  the  forbidden  time. 

§  2.  The  solemn  blessing  may  be  given  only 
by  that  priest  who  can  assist  at  the  marriage 


254        THE  FORM  OF  MARRIAGE 

validly  and  lawfully ;  he  may  give  it  himself  or 
through  another. 

263,  1.  It  is  the  wish  of  the  Church  that  all  mar- 
riages should  receive  the  nuptial  blessing  when  it  is 
permitted;  it  should  be  given  to  all  who  did  not  re- 
ceive it  when  they  were  married,  even  if  they  ask 
for  it  a  long  time  after,  and  they  should  be  exhorted 
to  ask  for  it  as  soon  as  possible.     (Holy  Office,  Aug. 
31,  1881.) 

The  blessing  should  not  be  given  outside  of  Mass, 
of  which  it  forms  a  part.  It  consists  of  the  prayers : 
Propitiare  Domine  .  .  .  Deus  qui  potestate  .  .  . 
which  the  priest  recites  over  the  couple,  between  the 
Pater  and  the  Libera  nos;  and  of  the  prayer  Deus 
Abraham,  which  is  said  before  the  Placeat. 

When  the  rubrics  do  not  allow  the  Nuptial  Mass, 
the  nuptial  blessing  may  be  inserted  in  the  Mass  of 
the  day,  except  during  the  forbidden  time,  which 
excludes  the  solemnization  of  marriage. 

264.  2.  The  priest  who  has  authority  to  perform 
the  marriage  ceremony  is  the  only  one  who  may 
give  the  solemn  blessing.     He  may  do  so  himself 
or  authorize  any  other  priest  to  do  it  in  his  place. 

B.   In  Mixed  Marriages 

Can.  1102.  §  1.  In  matrimoniis  inter  part  em  catho- 
licam  et  partem  acatholicam  interrogationes  de 
consensu  fieri  debent  secundum  praescriptum  can. 
1095,  §  1,  n.  3. 

§  2.  Sed  omnes  sacri  ritus  prohibentur;  quod  si 
ex  hac  prohibitione  graviora  mala  praevideantur, 
Ordinarius  potest  aliquam  ex  consuetis  ecclesias- 


RITES  TO  BE  OBSERVED         255 

ticis  caeremoniis,  exclusa  semper  Missae  celebra- 
tione,  permittere. 

265.  §  1.  In  marriages  contracted  between  a 
Catholic  and  a  non-Catholic  the  consent  must 
be  asked  as  prescribed  by  can.  1095,  §  1,  n.  3. 

§  2.  But  all  sacred  rites  are  forbidden;  if, 
however,  from  this  prohibition  greater  evils 
were  likely  to  result,  the  Ordinary  might  per- 
mit some  of  the  usual  ecclesiastical  ceremonies, 
always  to  the  exclusion  of  the  Mass. 

1.  Before  the  decree  Ne  temere,  the  assistance  of 
the  priest  at  mixed  marriages  was,  as  a  rule,  purely 
passive.  That  decree  having  demanded  an  active 
assistance  for  the  validity  of  the  contract,  the  Con- 
gregation of  the  Council  declared,  July  27,  1908, 
ad  3um,  that  this  applied  also  to  mixed  marriages, 
and  the  present  canon  ordains  likewise  that  in  mixed 
marriages  the  officiating  priest  will  ask  and  receive 
the  consent  as  in  other  marriages.  The  Holy  See 
may  make  an  exception  to  that  rule.  A  decree  of 
the  Holy  Office,  June  21,  1912,  declared  that  when 
by  special  permission  of  the  Sovereign  Pontiff  a 
priest  assists  at  a  mixed  marriage,  although  the  cus- 
tomary promises  have  not  been  made,  the  assistance 
must  remain  purely  passive.  But  this  held  ex- 
clusively in  those  countries  for  which  the  above  con- 
cession had  been  made ;  viz.,  parts  of  Hungary,  Aus- 
tria, and  Germany.  (A.  A.  S.,  vol.  iv,  p.  443 ;  Eccl. 
Rev.,  t.  xlvii,  p.  477 ;  N.  R.  T.,  Jan.,  1913,  p.  17 ; 
H.  O.,  Aug.  2,  1916;  A.  A.  S.,  Sept.  1,  1916.) 

266.  2.  Regularly,   mixed  marriages  have  to  be 


256 


celebrated  without  any  religious  ceremony,  outside 
of  the  church ;  the  priest  does  not  wear  any  religious 
vestments  or  insignia  of  his  office.  However,  several 
decrees  or  instructions  of  Congregations  had  author- 
ized Bishops  to  depart  from  that  severity  when 
deemed  necessary  to  avoid  greater  evils.  (Inst.  An- 
tonelliana,  Nov.  15,  1858.) 

The  publishing  of  the  banns,  a  short  address  or 
instruction,  the  celebration  of  the  marriage  in  church 
before  the  priest  vested  in  surplice,  were  permitted 
in  various  places.  But  it  was  always  understood 
that  no  Mass  should  be  celebrated  in  connection  with 
the  marriage  ceremony.  The  new  law  leaves  it  to 
the  Bishop  to  grant  the  same  permissions  when  the 
greater  good  of  souls  will  demand  it. 

8.°    REGISTRATION 

Can.  1103.  §  1.  Celebrate  matrimonio,  parochus  vel 
qui  ejus  vices  gerit,  quamprimum  describat  in  libro 
matrimoniorum  nomina  conjugum  ac  testium,  lo- 
cum et  diem  celebrati  matrimonii  atque  alia  secun- 
dum  modum  in  libris  ritualibus  et  a  proprio  Or- 
dinario  praescriptum;  idque  licet  alius  sacerdos 
vel  a  se  vel  ab  Ordinario  delegatus  matrimonio 
adstiterit. 

§  2.  Praeterea,  ad  normam  can.  470,  §  2,  parochus 
in  libro  quoque  baptizatorum  adnotet  conjugem 
tali  die  in  sua  paroecia  matrimonium  contraxisse. 
Quod  si  conjux  alibi  baptizatus  fuerit,  matrimonii 
parochus  notitiam  initi  contractus  ad  parochum 
baptismi  sive  per  se  sive  per  Curiam  episcopalem 
transmittat,  ut  matrimonium  in  baptizatorum 
librum  referatur. 

§  3.  Quoties  matrimonium  ad  normam  can.  1098 


REGISTRATION  257 

contranicur,  sacerdos,  si  eidem  adstiterit,  secus 
testes  tenentur  in  solidum  cum  contrahentibus  cu- 
rare ut  initum  conjugium  in  praescriptis  libris 
quamprimum  adnotetur. 

267.  §  1.  After  the  celebration  of  a  marriage, 
the  parish  priest,  or  he  who  takes  his  place,  is 
to  register  as  soon  as  possible  in  the  book  of 
marriages  the  names  of  the  couple  and  of  the 
witnesses,  the  place  and  day  of  the  celebration 
of  the  marriage,  and  the  other  details,  accord- 
ing to  the  method  prescribed  in  the  ritual  books 
or  by  the  Ordinary.  This  obligation  holds  like- 
wise when  another  priest,  delegated  either  by 
the  parish  priest  himself  or  by  the  Ordinary, 
has  assisted  at  the  marriage. 

§  2.  Moreover,  the  parish  priest  is  to  note  in 
the  book  of  baptisms  the  fact  that  the  married 
person  contracted  marriage  on  such  a  day  in 
his  parish.  If  the  married  person  was  baptized 
elsewhere,  the  parish  priest  who  has  assisted  at 
the  marriage  is  to  send  notice  of  the  marriage, 
either  directly  or  through  the  episcopal  curia, 
to  the  parish  priest  of  the  place  where  the  per- 
son was  baptized,  in  order  that  the  marriage 
may  be  inscribed  in  the  book  of  baptisms. 

§  3.  Whenever  a  marriage  is  contracted  in 
the  manner  described  under  can.  1098,  the 
priest,  if  one  was  present,  otherwise  the  wit- 
nesses, are  bound  conjointly  with  the  contract- 
ing parties  themselves  to  provide  that  the  mar- 
riage be  entered  as  soon  as  possible  in  the  pre- 
scribed registers. 


258         THE  FORM  OF  MARRIAGE 

1.  The  Council  of  Trent  (Sess.  xxiv,  c.  1)  com- 
mands pastors  to  have  a  book  in  which  to  enter 
marriages,  with  the  names  of  the  parties  and  wit- 
nesses, the  day  and  the  place  of  the  contract.  The 
Roman  ritual  contains  the  same,  prescriptions  (Tit. 
vii,  de  Sac.  Mat.,  c.  2),  giving  forms  to  be  used 
and  adding  that  the  parish  priest  ought  to  make 
the  entry  on  the  marriage  register  at  once,  and  with 
his  own  hand,  even  when  another  priest,  delegated 
by  him  or  by  the  Ordinary,  has  officiated  at  the 
marriage. 

The  decree  Ne  temere  and  this  canon  renew  those 
prescriptions,  completing  them  and  adding  new  ones. 

It  is  a  grave  obligation  for  a  parish  priest  to  have 
a  marriage  register  and  to  take  care  that  all  the 
marriages  celebrated  in  his  parish  are  entered  in  it. 
He  must  make  the  entry  as  soon  as  possible  in  order 
to  avoid  omission  or  inaccuracy.  The  new  law  does 
not  say  that  he  must  make  it  with  his  own  hand; 
therefore  he  may  entrust  that  office  to  some  one 
else,  but  the  responsibility  remains  with  him  (De 
Smet,  n.  338;  N.  R.  T.,  Mar.,  1908,  p.  155). 

The  record  should  mention  the  names  of  the  con- 
tracting parties,  the  place  and  date  of  the  marriage, 
and  other  particulars  called  for  by  rituals  or  dioce- 
san regulations.  Thus,  it  may  be  useful  to  make 
note  of  the  officiating  priest's  name,  of  the  dele- 
gation or  permission  received,  the  dispensations  ob- 
tained, the  promises  made  in  mixed  marriages,  the 
publication  or  omission  of  banns.  If  the  marriage 
was  afterward  declared  null  it  would  be  well  to  in- 
sert a  note  to  that  effect  in  the  register. 


REGISTRATION  259 

268.  2.  A  new  obligation  was  introduced  by  the 
decree  Ne  temere  and  is  maintained  in  the  new  Code 
— it  is  that  of  entering  the  marriage  in  the  bap- 
tismal book  also.     This  may  be  done  by  means  of 
a  simple  marginal  note  written  alongside  of  the  name 
of  the  parties  in  the  book  of  baptisms.    If  the  parties 
were  not  baptized  in  the  parish  in  which  they  are 
married,  notification  has  to  be  sent  to  the  pastor 
of  their  place  of  baptism  in  order  that  he  may  make 
the  proper  entry.     The  notification  may  be  sent  di- 
rectly or  through  the  episcopal  curia,  and  it  should 
be  sent  as  soon  as  possible,  within  two  days,  accord- 
ing to  some  diocesan  regulations.    (De  Smet,  n.  338 ; 
Cong.  Sac.,  March  6,  1911.) 

269.  3.  When  a  marriage  is  celebrated  without 
the  presence  of  the  parish  priest,  the  obligation  to 
have  it  entered  properly  does  not  cease;  it  falls  on 
the  priest  who  was  present,   if  there  was  one,   or 
on  the  witnesses  and  parties  themselves. 

In  several  countries  the  civil  law  imposes  that 
same  obligation  of  recording  marriages  in  the  bap- 
tismal register,  as  a  means  of  preventing  bigamy  or 
fraudulent  unions.  It  should  not  be  surprising  that 
similar  measures,  even  though  somewhat  burdensome, 
should  be  adopted  by  the  Church,  which  is  the  guar- 
dian of  the  sacredness,  unity,  and  indissolubility 
of  marriage.  If  this  law  is  complied  with  as  strictly 
as  circumstances  permit,  the  inquiry  as  to  the  free 
state  of  the  parties  before  marriage  will  be  greatly 
facilitated  and  many  abuses  prevented.  To  find  out 
whether  the  parties  are  bound  by  a  previous  contract 
or  not  it  will  suffice  to  consult  the  baptismal  regis- 


260        THE  FORM  OF  MARRIAGE 

ter,  or  the  baptism  certificate,  which  those  who  were 
not  baptized  in  the  parish  have  to  produce  in  com- 
pliance with  a  rule  on  the  importance  of  which  the 
Congregation  of  the  Sacraments  insisted  again  in  a 
decree  of  March  6,  1911.  The  object  of  the  Council 
of  Trent  and  of  the  present  legislation  in  prescrib- 
ing the  solemn  celebration  of  marriage  under  pain 
of  nullity  was  to  provide  for  "the  security  and  the 
stability  of  the  proof"  of  the  contract.  It  is  for  the 
same  purpose  that  pastors  were  commanded  to  have 
a  marriage  register.  But  that  end  will  not  be  at- 
tained at  all,  or  only  very  imperfectly,  unless  that 
system  of  double  registration  or  some  similar  meas- 
ure be  adopted,  at  the  present  time  particularly,  with 
the  constant  fluctuations  of  population.  The  mar- 
riage registers  can  not  very  often  be  consulted.  Mar- 
riage publicly  celebrated  in  one  place  can  remain 
unknown  in  another,  and  if  it  is  entered  in  only 
one  book  of  marriages  it  is  easy  to  conceal  it  in  a 
remote  district.  But  if  the  record  of  all  the  pos- 
sible marriages  validly  contracted  by  a  man  is  kept 
together  with  the  record  of  his  baptism,  as  the  lat- 
ter is  usually  easy  to  find,  the  former  will  be  also. 

270.  Often,  perhaps,  in  a  country  where  people 
have  come  from  all  parts  of  the  world  and  move 
freely  from  place  to  place,  it  may  be  difficult  or 
even  impossible  to  secure  the  proper  information 
about  the  place  of  baptism,  and  hence  also  to  send 
the  notification  of  marriage.  In  cases  of  impossi- 
bility the  obligation  ceases.  But  in  itself  the  law  is 
binding  sub  gravi,  as  the  best  authorities  teach  (Gen- 
nari,  Breve  commento,  p.  34),  and  as  can  be  con- 


REGISTRATION  261 

eluded  from  its  object  and  purpose.  Its  observance 
is  most  important  in  the  very  places  where  it  is  hard- 
est, because  they  are  the  places  in  which  the  free 
state  of  prospective  spouses  is  most  difficult  to  estab- 
lish, the  danger  of  adulterous  unions  greatest,  and 
the  strictest  care  necessary. 

The  difficulties  which  the  application  of  the  law 
offers  in  practice  are  not  unknown  to  the  Holy  See, 
and  yet,  when  negligences  were  reported  to  the  Con- 
gregation of  the  Sacraments,  the  answer  was  a  more 
detailed  instruction  on  the  manner  of  observing  the 
law  and  a  strong  recommendation  to  Bishops  "to 
use  vigilance  in  securing  obedience  to  these  rules, 
and  to  bring  the  transgressors,  if  they  meet  any,  to 
the  sense  of  their  duty,  even  by  recourse  to  canonical 
penalties,  if  need  be."  (March  6,  1911.)  And  now, 
after  an  experience  of  several  years,  the  new  Code 
retains  the  prescriptions  of  the  Ne  temere  on  mar- 
riage registration,  without  any  change. 


CHAPTER  VII 

MARRIAGES  OF  CONSCIENCE 
I.  NATURE 

271.  Marriages  of  conscience  are  those  which  are 
celebrated  in  the  form  prescribed  by  law,  but  in 
such  a  manner  that  they  may  remain  secret.     The 
banns  are  not  published  and  the  priest  and  witnesses 
who  assist  at  the  ceremony  are  bound  to  secrecy.    (De 
Smet,  n.  94.) 

II.   FORMER  LEGISLATION 

272.  It  is  contained  in  the  Constitution  of  Pope 
Benedict  XIV,  Satis  Vobis,  published  November  17, 
1714.     (Gasparri,  vol.  ii,  Allegatum  viii;  Gennari, 
Consultations  Canoniques,  Cons,  vi.) 

When,  by  the  publication  of  the  decree  Tameisi, 
clandestine  marriages  had  become  invalid,  a  substi- 
tute was  found- for  them  in  marriages  of  conscience, 
which,  for  a  while,  threatened  to  bring  back  the 
abuses  which  the  Council  of  Trent  intended  to  cor- 
rect. To  prevent  this,  Benedict  XIV,  without  for- 
bidding absolutely  marriages  of  conscience,  lays 
down  the  conditions  on  which  they  may  be  per- 
mitted : 

1.  Marriages  of  conscience  are  not  to  be  permitted 
except  for  urgent  and  very  urgent  reasons,  and  spe- 
cial care  has  then  to  be  taken  to  find  out  whether 
the  parties  are  free. 

2.  The  marriage  ought  to  be  celebrated  in  pres- 
ence of  the  parish  priest  of  the  parties  or,  at  least, 

263 


264      MARRIAGES  OF  CONSCIENCE 

of  a  priest  venerable  for  his  knowledge  and  virtue; 
and  the  parties  ought  to  be  warned,  beforehand,  that 
the  children  will  have  to  be  baptized  and  recognized 
as  legitimate. 

3.  After  the  celebration  of  the  marriage,  the  priest 
who  assisted  at  it  must  send  to  the  Ordinary  a  writ- 
ten report  giving  the  date,  place,  and  witnesses  of 
the  ceremony ;  that  document  is  transcribed,  word  for 
word,  in  a  special  register  kept  in  the  secret  archives 
of  the  diocese. 

4.  When  a  child  is  born,  the  father  or,  if  he  be 
dead,  the  mother,  ought  to  notify  the  Bishop,  who 
will  cause  the  information  to  be  entered  in  another 
special  register,  so  that  there  be  a  proof  of  the  legiti- 
macy of  the  child,  whether  it  was  baptized  under 
the  name  of  its  parents  or  under  fictitious  names. 
And  it  must  be  understood  that  should  the  parents 
fail  to  comply  with  that  obligation  the  Bishop  re- 
serves to  himself  the  right  to  make  their  union  public. 

III.   PKESENT  LAW 

The  present  law  is  substantially  the  same  as  that 
of  Benedict  XIV. 

1.    LAWFULNESS  OF  MABBIAGES  OF  CONSCIENCE 

Can.  1104.  Nonnisi  ex  gravissima  et  urgentissima 
causa  et  ab  ipso  loci  Ordinario,  excluso  Vicario 
General!  sine  speciali  mandato,  permitti  potest  ut 

matrimonium  conscientiae  ineatur,  idest  matrimo- 
nium  celebretur  omissis  denuntiationibus  et  secreto, 
ad  normam  canonum  qui  sequuntur. 


PRESENT  LAW  265 

273.  Only  for  very  grave  and  very  urgent 
causes  can  the  Ordinary  of  the  place,  and  he 
alone,  to  the  exclusion  of  the  vicar-general,  un- 
less the  latter  has  a  special  mandate  for  that, 
permit  marriages  of  conscience,  that  is,  mar- 
riages which  are  contracted  without  publica- 
tion of  banns  and  secretly,  in  accordance  with 
the  prescriptions  of  the  following  canons. 

(a)  The  reasons  required  for  authorizing  a  mar- 
riage of  conscience  are  called  very  grave  and  very 
urgent.     Benedict  XIV  gave  as  an  example  the  case 
of  two  persons  publicly  living  as  husband  and  wife, 
and  whom  everybody  believes  to  be  married,  while  in 
reality  they  are  not. 

(b)  The  matter  is  considered  so  important  that  to 
grant  those  authorizations  the  vicar-general  needs  a 
special  mandate.     Nothing  is  said  of  the  priest  who 
is  to  assist  at  such  marriages. 

2.     OBLIGATION  TO  KEEP  THEM  SECRET 

Can.  1105.  Permissio  celebrationis  matrimonii 
conscientiae  secumfert  promissionem  et  gravem  ob- 
ligationem  secret!  servandi  ex  parte  sacerdotis  assi- 
st entis,  testium,  Ordinarii  ej usque  successorum,  et 
etiam  alterius  conjugis,  altero  non  consentiente  di- 
vulgationi. 

274.  Permission  to  celebrate  a  marriage  of 
conscience  implies  a  pledge  and  a  grave  obliga- 
tion to  keep  it  secret  on  the  part  of  the  priest 
who  assists  at  it,  of  the  witnesses,  of  the  Ordi- 
nary and  his  successors,  and  of  each  one  of  the 


266      MARRIAGES  OF  CONSCIENCE 

parties  as  long  as  the  other  one  is  opposed  to 
the  disclosure. 

Can.  1106.  Hujus  promissionis  obligatio  ex  parte 
Ordinarii  non  extenditur  ad  casum  quo  vel  aliquod 
scandalum  aut  gravis  erga  matrimonii  sanctitatem 
injuria  ex  secret!  observantia  immineat,  vel  par- 
entes  non  curent  filios  ex  tali  matrimonio  susceptos 
baptizari  aut  eos  baptizandos  curent  falsis  expressis 
nominibus,  quin  interim  Ordinario  intra  triginta 
dies  notitiam  prolis  susceptae  et  baptizatae  cum 
sincera  indicatione  parentum  praebeant,  vel  chris- 
tianam  filiorum  educationem  negligant. 

275.  This  pledge  is  not  binding  on  the  Ordi- 
nary in  case  a  scandal  or  a  grave  injury  to  the 
sanctity  of  marriage  would  be  likely  to  follow 
from  the  keeping  of  the  secret ;  or  if  the  parents 
would  not  have  the  children,  born  of  such  a  mar- 
riage, baptized;  or  would  have  them  baptized 
under  fictitious  names,  without  informing  the 
Ordinary,  within  thirty  days,  of  the  birth  of 
the  children,  their  baptism,  and  the  exact  name 
of  the  parents ;  or  would  neglect  the  Christian 
education  of  the  children. 

(a)  By  granting  permission  for  a  marriage  of 
conscience,  the  Ordinary  imposes  the  obligation  of 
secrecy  about  it  on  all  those  who  are  connected  with 
its  celebration;  and  he  implicitly  binds  himself  and 
his  successors  to  the  same  secrecy. 

(h)  But  that  promise  which  he  makes  or  obliga- 
tion which  he  assumes,  is  only  conditional,  like  the 
permission  itself  for  the  marriage.  It  is  always 


PRESENT  LAW  267 

understood,  and  Benedict  XIV  asked  that  the  parties 
be  explicitly  informed,  that  permission  to  keep  a 
marriage  secret  was  granted  on  condition  that  no 
evil  consequences  would  follow  from  it  and  that  the 
parties  would  fulfil  their  part  of  the  contract. 

Secrecy  about  the  marriage  should  not  be  a  source 
of  scandal,  as  it  would  be  if  people  generally  came 
to  believe  that  the  parties  were  living  in  concubinage ; 
nor  should  it  favor  neglect  of  the  duties  of  the  mar- 
ried life,  or  of  the  duties  to  the  children  who  may 
be  born  of  such  unions. 

To  keep  the  marriage  secret  it  may  sometimes  be 
necessary  to  baptize  the  children  under  fictitious 
names  or  not  to  let  the  name  of  the  parents  appear 
on  the  baptism  register,  but  this  canon  implies  that, 
in  such  case,  the  parents  are  bound  to  notify  the 
Ordinary  within  a  month,  so  that  proofs  of  the  legiti- 
macy of  the  children  may  be  kept,  as  formerly,  in 
the  secret  archives  of  the  diocese. 

3.    REGISTRATION 

Can.  1107.  Matrimonium  conscientiae  non  est  ad- 
notandum  in  consueto  matrimoniorum  ac  baptiza- 
torum  libro,  sed  in  peculiar!  libro  servando  in  se- 
creto  Curiae  archive  de  quo  in  can.  379. 

276.  Marriages  of  conscience  should  not  be 
entered  in  the  usual  marriage  and  baptism 
register,  but  in  a  special  book  to  be  kept  in 
the  secret  archives  of  the  diocese  spoken  of  in 
can.  379. 


CHAPTER  VIH 

TIME  AND  PLACE  FOK  THE  CELEBRATION 
OF  MARRIAGE 

I.  TIME 

Can.  1108.  §  1.  Matrimonium  quolibet  anni  tern- 
pore  contrahi  potest. 

§  2.  Sollemnis  tantum  nuptiarum  benedictio  veta- 
tur  a  prima  dominica  Adventus  usque  ad  diem  Na- 
tivitatis  Domini  inclusive,  et  a  feria  IV  Cinerum 
usque  ad  dominicam  Paschatis  inclusive. 

§  3.  Ordinarii  tamen  locorum  possunt,  salvis 
legibus  liturgicis,  etiam  praedictis  temporibus  earn 
permittere  ex  justa  causa,  monitis  sponsis  ut  a 
nimia  pompa  abstineant. 

277.  §  1.  Marriage  may  be  contracted  any 
day  of  the  year. 

§  2.  Only  the  solemn  nuptial  blessing  con- 
tained in  the  Missal  is  forbidden  from  the  first 
Sunday  of  Advent  to  Christmas  Day  inclu- 
sively, and  from  Ash  Wednesday  to  Easter 
Sunday  inclusively. 

§  3.  Local  Ordinaries  may,  however,  permit 
it  during  that  time  also,  for  a  just  cause,  and 
warning  the  spouses  to  avoid  too  much  display. 

1.  By  common  law,  marriage  may  be  celebrated 
any  day  of  the  year  both  validly  and  licitly,  and, 
considering  the  matter  in  itself,  at  any  hour  of  the 
day,  since  there  is  no  mention  of  the  time.  Particu- 
lar law  may  put  restrictions  on  that  liberty. 

269 


270     CELEBRATION  OF  MARRIAGE 

278.  2.  During  what  is  called  the  forbidden  time 
the  common  law  of  the  Church  forbids  the  solemni- 
ties of  marriage. 

(a)  Before  the  Council  of  Trent,  in  some  places 
at  least,  the  prohibited  time  extended  from  the  first 
Sunday  in  Advent  to  Epiphany,  from  Septuagesima 
Sunday  to  the  Sunday  after  Easter,  and  from  the 
Monday   before   the   Ascension   to   Saturday   after 
Pentecost. 

The  Council  of  Trent  reduced  it  to  the  period  from 
the  first  Sunday  in  Advent  to  the  octave  of  the 
Epiphany,  and  from  Ash  Wednesday  to  the  Sunday 
after  Easter.  The  present  law  shortens  it  still  by  a 
few  weeks,  since  it  will  extend  only  from  the  first 
Sunday  in  Advent  to  Christmas  Day  and  from  Ash 
Wednesday  to  Easter  Sunday  inclusively.  The  time 
is  counted  from  midnight  to  midnight,  as  commonly 
understood. 

(b)  The  solemnities  forbidden  during  that  time 
are  explained  by  the  Ritual  to  mean  the  solemn 
nuptial  blessing  given  at  Mass,  the  escorting  of  the 
bride,  and  the  nuptial  feast.    The  present  law  speaks 
only  of  the  nuptial  blessing.     The  escorting  of  the 
bride  to  her  new  home  is  not  in  use  any  more,  and  it 
was  admitted  that  a  moderate  repast,  according  to 
the  customs  of  the  place,  was  not  condemned  during 
the  prohibited  time. 

279.  3.  Moreover,  Bishops  are  given  the  power, 
which  they  did  not  possess  before,   to  permit   the 
solemn  nuptial  blessing  during  the  prohibited  time. 
All  that  is  required  is  that  there  be  a  just  cause  and 
11'ft  thf  parties  be  warned  to  avoid  worldly  display 


which  would  be  unbecoming  during  a  time  of  pen- 
ance. 

By  particular  law  or  custom  even  the  celebration 
D£  marriage  may  be  unlawful  during  the  prohibited 
time. 

II.  PLACE 

Can.  1109.  §  1.  Matrimonium  inter  catholicos  cele- 
bretur  in  ecclesia  paroeciali;  in  alia  autem  ecclesia 
vel  oratorio  sive  publico  sive  semi-publico,  nonnisi 
de  licentia  Ordinarii  loci  vel  parochi  celebrari  po- 
terit. 

§  2.  Matrimonium  in  aedibus  privatis  celebrari 
Ordinarii  locorum  in  extraordinario  tantum  aliquo 
casu  et  accedente  semper  justa  ac  rationabili  causa 
permittere  possunt;  sed  in  ecclesiis  vel  oratoriis 
sive  Seminarii  sive  religiosarum,  Ordinarii  id  ne 
permittant,  nisi  urgente  necessitate,  ac  opportunis 
adhibitis  cautelis. 

§  3.  Matrimonia  vero  inter  partem  catholicam  et 
partem  acatholicam  extra  ecclesiam  celebrentur; 
quod  si  Ordinarius  prudenter  judicet  id  servari  non 
posse  quin  graviora  oriantur  mala,  prodenti  ejus 
arbitrio  committitur  hac  super  re  dispensare,  firmo 
tamen  praescripto  can.  1102,  §  2. 

280.  §  1.  Marriage  between  Catholics  shall 
be  celebrated  in  the  parish  church ;  to  celebrate 
it  in  another  church  or  chapel,  either  public  or 
semipublic,  the  permission  of  the  local  Ordi- 
nary or  of  the  pastor  is  necessary. 

§  2.  The  celebration  of  marriage  in  private 
houses  may  be  permitted  by  the  local  Ordi- 


272     CELEBRATION  OF  MARRIAGE 

naries  only  in  some  extraordinary  case,  always 
demanding  a  just  and  reasonable  cause;  but 
in  the  churches  or  chapels  of  seminaries  or  of 
convents  the  Ordinaries  shall  never  permit  it 
except  in  cases  of  necessity  and  all  proper  pre- 
cautions being  taken, 

§  3.  Marriages  between  Catholic  and  non- 
Catholic  parties  are  to  be  celebrated  outside  of 
the  church;  if,  however,  the  Ordinary  ju-iged 
prudently  that  greater  evils  would  follow  from 
the  observance  of  this  rule,  it  is  left  to  his  dis- 
cretion to  dispense  from  it;  without  the  pre- 
scription of  can.  1102,  §  2,  ceasing  to  bind. 

1.  In  one  of  the  chapters  of  the  Council  of  Trent 
(Sess.  xxiv,  c,  1,  de  Ref.  Mat)  it  was  implied  that, 
regularly,  marriage  was  to  be  celebrated  in  church, 
but  no  formal  law  existed  on  that  point. 

The  Roman  Ritual  (Tit  vii,  ch.  1,  n.  16)  says 
that  it  is  most  proper  to  celebrate  marriage  in  church ; 
whence  it  was  concluded  that  to  celebrate  it  in  pri- 
vate houses  or  even  in  private  chapels,  although  not 
forbidden,  by  common  law  would  be  improper.  Pub- 
lic or  semipublic  chapels  were,  in  this  matter,  assim- 
ilated to  churches,  unless  some  special  circumstance 
made  them  unfit  places  for  a  marriage  ceremony. 

281.  2.  It  is  now  explicitly  decreed  (a)  that  mar- 
riages be  celebrated  in  the  parish  church;  (b)  that 
to  celebrate  them  in  another  church  or  in  a  chapel, 
public  or  semipublic,  the  permission  of  the  Ordinary 
or  of  the  pastor  is  necessary  and  sufficient ;  (c )  that 
to  celebrate  them  in  private  houses — and  this  in- 


PLACE  273 

eludes,  no  doubt,  private  oratories — the  pastor's  per- 
mission does  not  suffice;  that  of  the  Ordinary  is  re- 
quired, and  he  is  to  grant  it  only  by  way  of  rare 
exception,  in  extraordinary  cases,  and  always  on 
condition  that  there  is  a  just  and  reasonable  cause 
for  it ;  ( d)  that  the  permission  to  celebrate  marriages 
in  seminary  or  convent  chapels  should  be  granted 
still  more  rarely,  only  in  cases  of  real  necessity,  and 
then  all  the  precautions  necessary  ought  to  be  taken 
to  avoid  what  might  be  unbecoming. 

3.  Mixed  marriages  ought  not  to  be  celebrated  in 
church,  unless  the  Ordinary  permits  it  to  avoid 
greater  evils.  Mass  remains  forbidden. 


EFFECTS  OF  MAKKIAGE 
I.   INDISSOLUBILITY  OF  MAKRIAGE 

Can.  1110.  Ex  valido  matrimonio  enascitur  inter 
conjuges  vinculum  natura  sua  perpetuum  et  ex- 
clusivum;  matrimonium  praeterea  christianum  con- 
jugibus  non  ponentibus  obicem  gratiam  confert. 

282.  From  valid  marriage  arises  between  the 
spouses  a  bond  of  its  nature  perpetual  and  ex- 
clusive; Christian  marriage  confers,  besides, 
grace  upon  parties  who  place  no  obstacle  to  it. 

The  contract  of  marriage  is  indissoluble  of  its  na- 
ture, independently  of  positive  legislation;  between 
pagans  as  between  Christians,  although  its  elevation 
to  the  dignity  of  a  sacrament  has  added  to  its  firm- 
ness. It  is  exclusive ;  the  right  it  gives  to  the  parties 
can  not  be  given  to  other  persons  at  the  same  time. 

Marriage  contracted  between  two  Christians  is  a 
sacrament  and  produces  grace  ex  opere  operato.  If 
only  one  of  the  contracting  parties  is  baptized,  it  is 
doubtful  whether  there  is  a  sacrament  for  the  bap- 
tized party;  because  it  seems  difficult,  on  account  of 
the  unity  of  the  contract,  for  the  marriage  bond  to 
be  sacramental  for  one  of  the  parties  and  not  for  the 
other.  (De  Smet,  n.  107;  Perrone,  ii,  pp.  289-294.) 

275 


27i>         EFFECTS  OF  MARRIAGE 

II    KELATIVE  RIGHTS  OF  THE  SPOUSES 

Can.  1111  Utrique  conjugi  ab  ipso  matrimonii  in- 
itio  aequum  jus  et  officium  est  quod  attinet  ad  actus 
proprios  conjugalis  vitae. 

283.  Both  spouses  have  from  the  beginning 
of  marriage  the  same  rights  and  duties  with  re- 
gard to  the  acts  of  the  conjugal  life. 

Can.  1112.  Nisi  jure  speciali  aliud  cautum  sit, 
uxor,  circa  canonicos  effectus,  particeps  efficitur 
status  mariti. 

Unless  otherwise  ordained,  the  wife,  before 
the  ecclesiastical  law,  shares  in  the  husband's 
status. 

1.  By  natural  law  the  husband  and  wife  are  equal 
in  what  pertains  to  the  conjugal  life  The  husband 
is  the  head  of  the  family  and  in  that  respect  he  is 
the  superior  of  the  wife,  who  owes  him  obedience 
and  submission,  but  in  what  pertains  to  marital  rela- 
tions they  have  the  same  rights  and  the  same  duties. 
The  husband  owes  fidelity  to  tbe  wife,  as  well  as 
the  wife  to  the  husband.  Adultery  is,  in  itself,  as 
unjust  on  the  part  of  one  as  on  the  part  of  the  other. 
Neither  could  take  a  vow  of  chastity  nor  embrace 
the  religious  life  without  the  other's  consent. 

284.  2.  By  ecclesiastical  law  the  wife  has  the  same 
canonical  standing  and  .dignity  as  the  husband.     Ex- 
ceptions may  be  made  to  this  rule,  as  in  the  civil 
order    there    are    marriages,    called    "morganatic," 
which  do  not  raise  the  wife  to  the  condition  of  the 
man;  but  this  would  require  a  special  ordinance. 


DUTIES  OF  PARENTS  277 

Even  when  in  the  eyes  of  the  civil  law  a  woman  does 
not  enjoy  the  full  rights  of  a  wife,  she  does  in  the 
eyes  of  canon  law  unless  otherwise  decreed.  By  mar- 
riage "the  very  being  or  legal  existence  of  the  wife 
is  merged  into  that  of  her  husband ;  hence  by  fiction 
of  law,  she  is,  generally  speaking,  supposed  to  live 
where  he  lives,  though  in  reality  they  live  apart,  and 
consequently  they  come  under  the  authority  of  the 
same  ecclesiastical  superiors  and  the  same  ecclesias- 
tical courts.  This  ceases  when  they  are  legitimately 
separated." 

III.  DUTIES  OF  PAKENTS 

Can.  1113.  Parentes  gravissima  obligatione  tenen- 
tur  prolis  educationem  turn  religiosam  et  moralem, 
turn  physicam  et  civilem  pro  viribus  curandi,  et 
etiam  temporali  eorum  bono  providendi. 

285.  Parents  are  under  very  grave  obliga- 
tion, according  to  their  means,  to  attend  to  the 
education  of  their  children,  both  religious  and 
moral,  physical  and  civil,  and  also  to  provide 
for  their  temporal  good. 

This  obligation  is  imposed  upon  parents  by  the 
very  law  of  nature ;  canon  law  reaffirms,  defines,  and 
enforces  it.  The  Catholic  Church  has  always  main- 
tained that  the  rights  and  duties  of  parents  extend 
to  all  the  functions  of  education.  As  far  as  depends 
on  them,  they  are  bound  to  make  their  children 
strong  and  good  men  and  women,  good  Christians 
and  good  citizens.  They  should  look  after  their  tern- 


278         EFFECTS  OF  MARRIAGE 

poral  welfare,  principally  when  children  are  not  able 
to  provide  for  themselves,  but  afterward,  also,  to  help 
them  to  improve  their  social  condition. 

IV.   LEGITIMACY  OF  CHILDREN 

Can.  1114.  Legit imi  sunt  filii  concept!  aut  nati  ex 
matrimonio  valido  vel  putative,  nisi  parentibus  ob 
sollemnem  professionem  religiosam  vel  susceptum 
ordinem  sacrum  prohibitus  tempore  conceptionis 
fuerit  usus  matrimonii  antea  contracti. 

286.  Children  are  legitimate  when  they  were 
conceived  in,  or  born  of,  a  valid  or  putative 
marriage,  unless,  the  parents  having  made 
solemn  religious  profession  or  received  Sacred 
Orders,  the  use  of  the  marriage  contracted  be- 
fore was  forbidden  them  at  the  time  of  the  con- 
ception. 

1.  By  strict  right  only  those  children  are  legit- 
imate whose  parents  are  validly  married.  The  Ro- 
man law  and  the  ancient  canon  law  did  not  recog- 
nize any  others.  But  since  the  twelfth  century  the 
Church  has  admitted  as  sufficient  for  the  legitimacy 
of  children  putative  marriages;  i.e.,  those  marriages 
which,  although  null,  are  thought  to  be  valid  and 
had  been  contracted  in  good  faith,  at  least  by  one  of 
the  parents.  The  lawwas  interpreted  as  applying 
whether  the  good  faith  was  due  to  an  error  of  fact 
or  one  of  right.  But  it  was  always  required  that 
the  marriage  should  have  been  celebrated  publicly. 
The  new  law  introduces  no  change  in  the  former  dis- 


PRESUMED  PATERNITY          279 

cipline  and  therefore  should  be  interpreted  in  the 
same  sense. 

2.  If  parties,  validly  married,  make  solemn  re- 
ligious profession  or  receive  Sacred  Orders,  there 
arises  between  them  an  impediment  which  can  not 
render  their  marriage  null,  since  it  is  indissoluble, 
but  renders  relations  illegitimate,  and  the  Church 
looks  upon  children  born  of  such  relations  as  if  they 
had  been  born  of  fornication. 

V.  PRESUMED  PATERNITY 

Can.  1115.  §  1.  Pater  is  est  quern  justae  nuptiae 
demonstrant,  nisi  evidentibus  argumentis  contra- 
rium  probetur. 

§  2.  Legitimi  praesumuntur  filii  qui  nati  sunt 
saltern  post  sex  menses  a  die  celebrati  matrimonii, 
vel  intra  decem  menses  a  die  dissolutae  vitae  con- 
jugalis. 

287.  §  1.  The  father  is  he  whom  legitimate 
marriage  points  out  as  such,  unless  the  con- 
trary be  proved  by  conclusive  arguments. 

§  2.  Children  born  at  least  six  months  after 
the  celebration  of  the  marriage  or  within  ten 
months  of  the  dissolution  of  conjugal  life  are 
presumed  to  be  legitimate. 

1.  Like  the  old  Roman  law,  canon  law  presumes 
that  the  father  of  the  child  is  the  man  who  was  the 
mother's  legitimate  husband  at  the  time  of  the  con- 
ception or  at  least  of  the  birth.  This  is,  however,  a 
simple  presumption  which  admits  of  proofs  to  the 


280         EFFECTS  OF  MARRIAGE 

contrary;  only  they  must  be  convincing  ones;  the 
benefit  of  the  doubt,  if  any  remains,  is  given  to  the 
child. 

2.  Conception  is  supposed  to  have  taken  place  dur- 
ing the  marriage  and  to  render  the  children  legiti- 
mate if  they  are  born  not  less  than  180  days  after 
the  marriage  was  contracted,  and  not  more  than  300 
days  after  separation.  This  again  is  only  a  presump- 
tion. 

VI.  LEGITIMATION  OF  CHILDKEST 

Can.  1116.  Per  subsequens  parentum  matrimonium 
sive  verum  sive  putativum,  sive  noviter  contractual 
sive  convalidatum,  etiam  non  consummatum,  legi- 
tima  efficitur  proles,  dummodo  parentes  habiles  ex- 
stiterint  ad  matrimonium  inter  se  contrahendum 
tempore  conceptionis,  vel  praegnationis,  vel  na- 
tivitatis. 

288.  By  the  subsequent  marriage  of  the  par- 
ents, whether  real  or  putative,  whether  newly 
contracted  or  revalidated,  even  only  ratified, 
the  offspring  becomes  legitimate,  provided  the 
parents  were  able  to  contract  marriage  at  the 
time  of  the  conception,  of  the  pregnancy,  or  of 
the  birth. 

Can.  1117.  Filii  legitimati  per  subsequens  matri- 
monium, ad  effectus  canonicos  quod  attinet,  in  om- 
nibus aequiparantur  legitimis,  nisi  aliud  expresse 
cautum  fuerit. 

289.  Children    legitimated     by    subsequent 
marriage  are,  in  the  eyes  of  canon  law,  assimi- 


LEGITIMATION  OF  CHILDREN    281 

lated  in  all  things  to  legitimate  children,  unless 
expressly  ordained  otherwise  by  law. 

1.  Legitimacy  is  an  effect  of  the  natural  law ;  still 
it  depends  also  on  the  positive  law,  which  can  ex- 
tend some  of  its  privileges  to  children  who  would 
not  otherwise  be  entitled  to  them. 

The  Church,  at  least  since  the  time  of  Alexander 
III,  has  used  that  power  in  favor  of  illegitimate  chil- 
dren whose  parents  have  afterward  contracted  mar- 
riage. This  was  done  for  the  sake  of  the  children, 
who  are  innocent,  and  also  to  encourage  persons  who 
had  illicit  intercourse  to  become  legitimately  united. 
By  a  fiction  of  the  law  the  marriage  is  referred  back 
to  the  time  of  the  children's  conception  or  birth.  For 
that  reason  it  is  demanded  that  the  marriage  should 
have  been  possible  at  that  time,  that  is,  that  there 
should  be  no  impediment  between  the  parents  at  the 
time  of  the  conception  or  of  the  birth  or  between 
the  two.  It  is  not  necessary  that  it  should  have 
been  possible  at  the  time  of  the  conception  as  some 
canonists  thought  and  even  children  whose  concep- 
tion is  adulterine  may  have  the  benefit  of  this  law 
if  the  impediment  disappears  before  their  birth.  It 
will  likewise  be  certain  henceforth  that  this  effect  is 
produced  by  putative  marriage.  The  legitimation 
follows  from  the  very  fact  of  the  marriage  of  the 
parents  without  any  special  declaration  and  whether 
it  takes  place  immediately  after  the  birth  of  the 
child  or  long  after. 

If  the  mother  would  marry  one  who  is  not  the 
father  of  the  child,  even  though  he  would  legally 


282         EFFECTS  OF  MARRIAGE 

acknowledge  it,  the  child  would  not  be  legitimated. 
However,  it  is  presumed  that  he  who  marries  the 
mother  is  the  child's  father,  and  the  testimony  of  the 
two  parties  affirming  that  such  is  the  case  would  be 
accepted  as  sufficient  evidence  unless  there  would  be 
proofs  to  the  contrary. 

290.  2.  Legitimation  by  subsequent  marriage  con- 
fers the  right  to  receive  Orders  and  be  promoted  to 
ecclesiastical  dignities,  except  the  Cardinalate.  Six- 
tus  V  introduced  that  exception  in  the  Const.  Post- 
quant,  Dec.  3,  1586. 

Legitimation  by  papal  rescript  has  generally  not 
the  same  efficacy.  (De  Smet,  n.  168 ;  Wernz,  n.  686 ; 
Putner,  n.  120.) 


CHAPTER  X 

MUTUAL  SEPARATION  OF  MARRIED 
PEOPLE 

291.  That  separation  may  imply  the  dissolution  of 
the  marriage  bond — then  we  have  divorce  properly 
so  called,  absolute  divorce,  divortium  plenum.  Or 
it  may  leave  the  marriage  bond  intact  and  mean  only 
the  cessation  of  common  life — we  have  then  limited 
divorce  or  simple  separation. 


ARTICLE  I 
DISSOLUTION  OF  THE  MARRIAGE  BOND 

As  said  above,  every  marriage  validly  contracted 
is  indissoluble  by  the  law  of  nature.  Christian  mar- 
riage was  made  a  still  more  sacred  contract  when 
it  was  raised  to  the  dignity  of  a  sacrament.  It  is 
not,  however,  above  God's  power  to  make  an  excep- 
tion to  a  general  divine  law  as  long  as  this  is  not 
against  the  absolutely  essential  order  of  things.  Ex- 
ceptions were  made  under  the  old  dispensation  to 
the  law  of  marriage  indissolubility.  Are  there  any 
under  the  new  ?  Has  the  Church  received  authority 
to  break  the  marriage  bond  in  certain  cases?  We 
may  examine  that  question  in  regard  to  the  various 
kinds  of  marriages  defined  in  the  Introduction.  (Can. 
1015.) 

283 


284  MUTUAL  SEPARATION 

A.  Marriage  Ratified  and  Consummated 

Can.  1119.  Matrimonium  non  consummatum  inter 
summatum  nulla  humana  potestate  nullaque  causa, 
praeterquam  morte,  dissolvi  potest. 

Valid  marriage  ratified  and  consummated 
can  be  dissolved  by  no  human  power  and  by  no 
other  cause  than  death. 

A  Christian  marriage  which  has  been  consummated 
is  complete  in  every  respect,  and  should  therefore 
possess  more  firmness  and  more  stability  than  any 
other.  If  God  had  so  willed,  it  could  have  been 
made  dissoluble  by  adultery,  as  the  Greeks  and 
Protestants  claim  it  is.  But  the  Catholic  Church 
has  always  maintained  that  there  is  no  evidence  of 
any  such  divine  disposition,  and  consequently  the 
principle  holds  good:  "What  God  has  joined  to- 
gether let  no  man  put  asunder." 

B.    Marriage  Only  Ratified 

Can.  1119.  Matrimonium  non  consummation  inter 
baptizatos  vel  inter  partem  baptizatam  et  partem 
non  baptizatam,  dissolvitur  turn  ipso  jure  per  sol- 
lemnem  professionem  religiosam,  turn  per  dispen- 
sation em  a  Sede  Apostolica  ex  justa  causa  con- 
cessam,  utraque  parte  rogante  vel  alterutra,  etsi  al- 
tera  sit  invita. 

292.  Marriage  only  ratified  between  two  bap- 
tized parties  or  between  one  baptized  and  one 
unbaptized,  is  dissolved  by  the  very  fact  of 
solemn  religious  profession,  and  also  by  dis- 


MARRIAGE  ONLY  RATIFIED      285 

pensation  of  the  Holy  See,  granted  for  a  just 
cause  at  the  request  of  the  two  parties  or  even 
of  one  of  them,  against  the  wish  of  the  other. 

A  merely  ratified  marriage  was  considered  by 
Gratian  and  the  school  of  Bologna  as  no  real  mar- 
riage and  therefore  not  indissoluble.  Peter  Lom- 
bard and  the  school  of  Paris  found  in  it  all  the 
essential  elements  for  a  marriage  contract  and  main- 
tained its  absolute  indissolubility.  The  controversy 
was  settled  by  the  Koman  Pontiffs,  particularly 
Alexander  III  (1159-1181),  who  affirmed  the  indis- 
solubility of  matrimonium  ratum,  admitting,  how- 
ever, against  Peter  Lombard,  that  it  can  be  dissolved 
by  religious  profession  and  Papal  dispensation, 
(c.  3,  x,  iv,  4;  Esmein,  Le  manage  en  droit 
canonique,  vol.  i,  p.  124  seq.) 

I.   BELIGIOUS   PROFESSION 

293.  1°.  That  solemn  religious  profession  dis- 
solves a  merely  ratified  marriage  was  authoritatively 
declared  by  Alexander  III  (c.  2  and  7,  x,  iii,  32) 
and  Innocent  III  (ibid.,  c.  14),  universally  received 
in  practice,  after  them,  and  defined  by  the  Council 
of  Trent.  (Sess.  xxiv,  De  Sacramento  Matrimonii, 
Can.  6.)  The  only  question  which  remained  con- 
troverted was  whether  religious  profession  dissolved 
marriage  by  divine,  or,  as  more  commonly  admitted, 
by  ecclesiastical,  right. 

2°.  It  is  only  solemn  religious  profession  that  pos- 
sesses that  power,  not  a  simple  vow  of  chastity,  nor 
the  reception  of  Sacred  Orders.  The  marriage  is 


286  MUTUAL  SEPARATION 

dissolved  when  the  profession  is  made,  without  any 
further  formalities,  and  the  other  partner  becomes 
free  at  once  to  marry  again.  It  does  not  matter  how 
long  the  marriage  had  existed,  provided  it  was  not 
consummated.  But  if  consummated,  even  through 
violence,  deceit,  or  injustice,  it  is  absolutely  indis- 
soluble. 

3°.  The  present  law,  like  earlier  documents, 
speaks  only  of  matrimonium  ratum  non  consumma- 
ium;  but  canonists  conclude  that,  a  fortiori,  solemn 
religious  profession  dissolves  matrimonium  legiti- 
mum  non  consummatum,  which  possesses  less  firm- 
ness. Whether  it  would  dissolve  also  a  matrimonium 
legitimum  consummatum  coming  under  the  authority 
of  the  Church  by  the  baptism  of  one  of  the  parties, 
or  the  matrimonium  consummatum  become  ratified 
by  the  baptism  of  the  two  parties,  is  doubtful,  for 
there  is  no  text  conceding  that  power  to  solemn  vows, 
and  there  exists  no  certain  example  of  such  disso- 
lution. The  efficacy  of  the  religious  profession  does 
not  extend  beyond  the  limits  assigned  to  it  by  the 
law. 

H.   PAPAL.  DISPENSATION 

294.  1.  The  Roman  Pontiffs  have  exercised  for 
centuries  the  power  of  dissolving  marriages  merely 
ratified;  there  can  be  no  doubt  that  they  possess 
it,  not  of  their  own  authority,  but  as  God's  ministers 
and  representatives. 

2.  They  have  exercised  that  power  when  two  con- 
ditions were  fulfilled: 


MARRIAGE  ONLY  RATIFIED      287 

(a)  It  must  be  proved  juridically  that  the  mar- 
riage was  not  consummated ;  this  may  be  established 
by  medical  examination  or  by  circumstances  show- 
ing that  the  parties  could  not  have  conjugal  relations 
after  marriage,  or  by  the  testimony  of  the  parties 
themselves  confirmed  by  that  of  seven  witnesses  on 
either  side,  testimonium  septimae  manus. 

(!})  There  must  be  a  grave  reason.  A  dispensa- 
tion granted  without  sufficient  reason  would  be  not 
only  unlawful,  but  more  probably  invalid,  for  the 
Pope  exercises  here  a  ministerial  and  delegated 
power.  (Gasparri,  n.  1081.) 

As  soon  as  the  dispensation  is  granted,  both  parties 
are  free  to  marry,  provided  there  be  no  other  ob- 
stacle. 

Those  dispensations  are  granted  only  by  the  Sov- 
ereign Pontiff.  (Can.  1985.)  All  such  cases  have 
to  be  referred  to  him,  through  the  Congregation  of 
the  Sacraments.  Usually  the  Ordinary  is  delegated 
to  make  the  proper  investigations.  The  special  pro- 
cedure to  be  followed  in  those  causes  is  described  in 
the  Constitution  Dei  miseratione  or  in  an  instruction 
of  the  Holy  Office  which  gives  a  simplified  form. 
(Gasparri,  vol.  ii,  Allegatum  ix,  3 ;  Can.  1962,  1963, 
1966-1969,  etc.) 

295.  Corollary.  It  may  be  asked  here  whether  the 
Sovereign  Pontiffs  have  also  the  power  of  dissolving 
(1)  a  marriage  legitimum  non  consummatum — i.e., 
one  contracted  between  infidels  and  never  consum- 
mated; (2)  a  marriage  legitimum  ei  consummatum, 
contracted  and  consummated  in  infidelity;  (3)  a 
marriage  consummatum  et  ratum,  contracted  and 


288  MUTUAL  SEPARATION 

consummated  in  infidelity,  then  rendered  ratum  by 
the  baptism  of  both  parties,  but  not  consummated 
after  baptism;  (4)  marriage  consummated  again 
after  the  baptism  of  one  of  the  parties;  (5)  marriage 
consummated  after  the  baptism  of  both  parties. 

The  Pope  has  no  authority  over  the  marriage  of 
two  infidels,  until  one  of  them  is  baptized.  This  con- 
dition being  fulfilled  there  seems  to  be  no  doubt 
that  he  will  have  power  to  dissolve  the  marriage  in 
the  first  case  and  not  in  the  fifth.  (Gasp.  1108.) 
Whether  he  will  have  it  in  the  second,  third,  and 
fourth  is  controverted.  Many  claim  that  such  a  power 
was  exercised,  particularly  by  Gregory  XIII,  who 
declared  valid  marriages  contracted  by  converts  after 
the  baptism  of  the  two  parties,  i.e.,  after  the  first  mar- 
riage had  become  ratum  and  the  Pauline  privilege 
was  no  more  applicable.  (Of.  infra.) 

'C.  Legitimate  Marriage  or  Marriage  of  Infidels  and 
Pauline  Privilege 

I.    EXISTENCE  AND  OBJECT  OF  THE  PRIVILEGE 

Can.  1120.  §  1.  Legitimum  inter  non  baptizatos 

matrimonium,  licet  consummatum,  solvitur  in  favo- 
rem  fidei  ex  privilegio  Paulino. 

§  2.  Hoc  privilegium  non  obtinet  in  matrimonio 
inito  cum  dispensatione  ab  impedimento  dispari- 
inter  partem  baptizatam  et  partem  non  baptizatam 
tatis  cultus. 

296.  §  1.  Legitimate  marriage  between  un- 
baptized  persons,  even  if  consummated,  is  dis- 


PAULINE  PRIVILEGE  289 

solved  in  favor  of  the  Faith  by  virtue  of  the 
Pauline  Privilege. 

§  2.  This  privilege  is  not  applicable  to  a 
marriage  contracted  between  a  baptized  and  an 
unbaptized  person  with  dispensation  from  the 
impediment  of  disparity  of  cult. 

1.  The  marriage  of  infidels,  although  a  merely 
natural  contract,  is,  of  itself,  indissoluble.     But  as 
it  would  happen  frequently  that  converts,  after  re- 
ceiving Baptism,  would  be  abandoned  by  their  un- 
converted partners  or  obliged  to  abandon  them,  in 
order  that  the  burden  of  perpetual  continence  should 
not  be  imposed  upon  them  through  the  malice  of  un- 
believers, an  exception  to  the  law  of  the  indissolubility 
of  marriage  was  made  in  their  favor.     This  is  what 
is  called  the  Privilege  of  the  Faith,  Casus  Aposioli, 
Pauline  Privilege,  because  it  was  promulgated  by  St. 
Paul  in  the  name  of  Christ  or  introduced  by  him  in 
virtue  of  special  authority.     (1  Cor.  vii,  8-15.) 

2.  The  privilege  supposes  a  marriage  contracted 
between   two   unbaptized   persons,    whether    infidels 
properly  so  called,  or  members  of  a  Christian  sect; 
it  consists  in  this,  that  if,  one  of  the  parties  having 
received  Baptism,  the  other  refuses  to  be  baptized 
or  at  least  to  live  peaceably,  the  baptized  party  may 
contract  another  marriage. 

The  privilege  does  not  apply  in  the  case  of  a 
marriage  between  a  baptized  and  an  unbaptized 
party,  as  is  explicitly  stated ;  still  less  in  the  case  of 
two  baptized  parties  one  of  whom  would  afterward 
fall  into  apostasy. 


290  MUTUAL  SEPARATION 

Actual  reception  of  Baptism  is  required;  willing- 
ness or  desire  to  be  baptized  does  not  suffice. 

Some  canonists  would  exclude  from  this  privilege 
those  who  are  baptized  in  a  false  sect.  Nothing  in 
the  texts  supports  that  view. 


II.     INTERPELLATIONS  t   NECESSITY,  OBJECT, 
DISPENSATION 

Can.  1121.  §  1.  Antequam  conjux  conversus  et 
baptizatus  novum  matrimonium  valide  contrahat, 
debet,  salvo  praescripto  can.  1125,  partem  non  bap- 
tizatam  interpellate : 

1.°  An  velit  et  ipsa  convert!  ac  baptismum  sus- 
cipere ; 

2.°  An  saltern  velit  secum  cohabit  are  pacifice  sine 
contumelia  Creatoris. 

§  2.  Hae  interpellationes  fieri  semper  debent,  nisi 
Sedes  Apostolica  aliud  declaraverit. 

297.  §  1.  Before  the  converted  party  may 
contract  another  marriage  validly  he  must,  ex- 
cept in  cases  provided  for  in  can.  1125,  inter- 
pellate the  unbaptized  party  and  ask: 

1.°  Whether  he  is  willing  to  be  converted  also 
and  receive  Baptism; 

2.°  Or,  at  least,  whether  he  is  willing  to  live 
peaceably  without  blaspheming  the  Creator. 

§  3.  These  interpellations  ought  always  to 
be  made,  unless  the  Apostolic  See  direct  other- 
wise. 


PAULINE  PRIVILEGE  291 

1.°   Necessity  of  the  Interpellations 

The  baptized  party  can  make  use  of  the  Pauline 
Privilege  only  if  the  other  one  abandons  him.  To 
ascertain  the  existence  of  that  condition  he  must 
interpellate  his  unconverted  partner.  There  might 
be  other  means  of  finding  his  disposition,  but  the  in- 
terpellation is  prescribed,  at  least  by  ecclesiastical 
law,  for  the  validity  of  the  subsequent  marriage,  as 
the  text  of  the  present  canon  clearly  implies.  It 
should  never  be  omitted,  therefore,  without  dispensa- 
tion, even  when  the  answer  has  been  given  already 
equivalently ;  as  when  the  unconverted  party  had  ex- 
pelled the  other  or  obtained  a  civil  divorce  and  con- 
tracted a  new  marriage.  (S.  C.  de  Propaganda 
Fide,  March  3,  1816.)  If  he  had  become  guilty  of 
adultery,  the  Christian  party  would  be  entitled  to 
perpetual  separation,  but  it  is  not  certain  that  the 
right  to  marry  again  would  be  acquired  also  thereby. 
(Gasparri,  n.  1093.)  If  the  interpellation  is  impos- 
sible, dispensation  should  be  obtained.  The  interpel- 
lation should  be  made  after  the  baptism;  if  it  was 
made  before,  it  should  be  repeated  after  or  a  dis- 
pensation obtained.  (Inst.  S.  O.,  June  3,  1874; 
Collect.,  n.  1357.) 

2.°    Object  of  the  Interpellations 

298.  Two  questions  are  asked.  When  the  first  one 
is  answered  negatively  the  Holy  See  frequently  dis- 
penses from  the  second,  for  conversion  of  the  infidel 
party  is  an  almost  necessary  condition  for  peaceful 
cohabitation.  But  whether  the  first  is  answered  af- 


292  MUTUAL  SEPARATION 

firmatively  or  negatively,  if  the  answer  to  the  second 
one  is  negative,  that  is,  when  the  infidel  party,  refuses 
to  live  peaceably,  the  convert  has  the  privilege  of  con- 
tracting another  marriage.  Hence  the  importance 
of  the  second  question. 

3.°  Dispensation 

299.  Dispensation  can  be  granted  only  by  the  Holy 
See,  because  the  supreme  authority  in  the  Church 
alone  has  mission  to  interpret  the  divine  ordinances 
and  power  to  dispense  from  universal  ecclesiastical 
laws.     Dispensation,  which  is  here  rather  an  inter- 
pretation of  the  divine  law,   is  granted  either  in 
individual   cases   or  by  general   concessions,   as   by 
can.  1125.     It  may  be  from  one  or  from  both  ques- 
tions.    Thus  converted  polygamists  have  frequently 
to  ask  their  first  and  only  legitimate  wife  only  the 
first  question.     If  she  refuses  to  be  baptized  they 
may  marry  any  one  of  their  .other  wives  provided  she 
consents  to  become  a  Christian. 

The  power  to  dispense  from  the  interpellation  is 
also  granted  to  some  Ordinaries,  particularly  in  mis- 
sionary countries,  with  permission  to  subdelegate  it 
to  some  of  their  priests. 

300.  By  a  decree  of  the  Holy  Office  of  August  11, 
1859,  all  Bishops  and  vicars-apostolic  were  granted 
that  power  in  cases  of  necessity  when  there  was  no 
time  for  recourse  to  Rome.     It  has  not  been  with- 
drawn explicitly  and,  therefore,  may  still  be  exer- 
cised.   (See  can.  1125.    It  was  included  in  the  facul- 
ties granted  to  Ordinaries  in  the  United  States,  Form 
T,  n.  13.) 


PAULINE  PRIVILEGE  293 

The  dispensation  requires  a  serious  reason.  Ordi- 
narily it  is  the  well-ascertained  impossibility  or  the 
uselessness  of  the  interpellation,  the  refusal  of  the 
infidel  to  give  an  answer,  danger  to  the  Christian, 
danger  of  arousing  persecution,  doubt  about  the  valid- 
ity of  the  first  marriage,  etc.  (H.  O.,  June  20,  1866  ; 
March  13,  1901;  Putzer,  n.  130;  De  Smet,  n.  195.) 
If  the  marriage  is  not  contracted  within  a  year,  a 
new  dispensation  becomes  necessary.  This  rule,  how- 
ever, does  not  apply  to  the  interpellation;  once  it 
has  been  made,  there  is  no  obligation  of  renewing 
it,  even  if  the  marriage  is  delayed  over  a  year.  It 
may  be  noted  here  that  a  marriage  contracted  with 
a  dispensation  obtained  from  the  Holy  See  is  valid 
even  though  it  is  found  later  on  that  at  the  moment 
it  was  celebrated  the  supposed  infidel  party  had 
already  received  Baptism  or  was  prevented  from  ex- 
pressing willingness  to  cohabit  peaceably.  (Gregory 
XIII,  Const.  Populis,  Jan.  25,  1585;  Ben.  XIV, 
Const.  In  suprema,  Jan.  16,  1745 ;  Coll.  Prop.  1305, 
1307.) 

4.°   Form  of  the  Interpellations 

Can.  1122.  §  1.  Interpellationes  fiant  regulariter, 
forma  saltern  summaria  et  extrajudiciali,  de  auctori- 
tate  Ordinarii  conjugis  conversi,  a  quo  Ordinario 
concedendae  sunt  quoque  conjugi  infideli,  si  quidem 
eas  petierit,  induciae  ad  deliberandum,  eo  tamen 
monito,  fore  ut,  induciis  inutiliter  praeterlapsis, 
responsio  praesumatur  negativa. 

§  2.  Interpellationes  etiam  privatim  factae  ab  ipsa 
parte  conversa,  valent,  imo  sunt  etiam  licitae,  si 


294  MUTUAL  SEPARATION 

forma  superius  praescripta  servari  nequeat;  hoc 
tamen  in  casu  de  ipsis,  pro  foro  externo,  constate 
debet  duobus  saltern  testibus  vel  alio  legitimo 
probationis  modo. 

301.  §  1.  The  interpellation  shall  regularly 
be  made  in  at  least  the  summary  extrajudicial 
form,  by  authority  of  the  converted  spouse's 
Ordinary,  who  likewise  grants  time  for  delib- 
eration if  the  infidel  party  asks  for  it,  warning 
him,  however,  that,  the  time  having  elapsed, 
silence  will  be  taken  for  a  negative  answer. 

§  2.  The  interpellation  made  privately  by 
the  converted  party  himself  is  valid  also ;  it  is 
even  licit  if  the  form  prescribed  above  can  not 
be  observed;  in  that  case,  however,  it  must  be 
possible  to  prove  that  it  has  been  made,  by  the 
testimony  of  at  least  two  witnesses  or  any  other 
legitimate  evidence. 

1.  The  formalities  required  here  are  the  same  as 
for  a  summary  trial:  (a)  The  Ordinary  of  the  con- 
verted party  or  one  delegated  by  him  summons  the 
infidel  before  the  ecclesiastical  court,  on  a  certain 
day,  to  answer  the  interpellation,  (b)  The  infidel 
party  appears  before  the  judge,  who,  in  the  name 
of  the  convert  and  in  presence  of  two  sworn  witnesses, 
puts  to  him  the  two  questions,  (c)  If  the  answers 
are  negative  the  judge  Declares  the  convert  free  to 
marry  again  or  remain  a  celibate.  (Putzer,  nn.  129, 
132;  Zitelli,  Disp.,  p.  122.)  A  record  of  the  pro- 
ceedings should  be  kept  in  the  diocesan  archives  for 
future  reference. 


PAULINE  PRIVILEGE  295 

The  questions  should  be  put  clearly  and  explicitly, 
so  that  the  unbaptized  party  may  understand  their 
full  meaning  and  import.  If  he  was  asked  only 
whether  he  is  willing  to  become  a  Christian,  without 
any  reference  to  the  marriage,  whether  he  is  willing 
to  take  back  his  wife,  the  interpellation  might  be 
null,  as  was  declared  by  Gregory  XVI  in  a  particu- 
lar case  (Jan.  17,  1836),  or  it  might  be  of  doubtful 
value.  (Gasparri,  n.  1104,  4°.) 

If  the  infidel  spouse  asks  for  some  time  to  reflect, 
the  request  is  granted  when  reasonable,  provided  it 
can  be  done  prudently  and  without  danger  to  the  con- 
verted spouse's  faith  and  morals.  The  Ordinary  has 
authority  to  fix  a  certain  time  within  which  the  an- 
swers must  be  given. 

302.  2.  The  interpellation  may  be  made  also  pri- 
vately by  the  party  himself,  personally  or  through 
some  one  else,  orally  or  by  letter,  in  presence  of  wit- 
nesses or  secretly.  This  will  always  suffice  for  the 
validity  and  for  the  internal  forum.  The  legal  form, 
however,  is  obligatory  whenever  it  is  possible  to  ob- 
serve it ;  and  the  private  interpellation  will  be  of  no 
value  in  the  external  forum  unless  there  be  proofs 
of  it. 

5.°    Effects  of  the  Interpellations 

Can.  1123.  Si  interpellationes  ex  declaratione  Sedis 
Apostolicae  omissae  fuerint,  aut  si  infidelis  eisdem 
negative  respondent  expresse  vel  tacite,  pars  bap- 
tizata  jus  habet  novas  nuptias  cum  persona  cath- 
olica  contrahendi,  nisi  ipsa  post  baptismum  dederit 
parti  non  baptizatae  justam  discedendi  causam. 


296  MUTUAL  SEPARATION 

303.  If  the  Apostolic  See  has  authorized  the 
omission  of  the  interpellations  or  if  the  infidel 
party  has  answered  in  the  negative,  expressly 
or  tacitly,  the  baptized  party  has  the  right  to 
contract  a  new  marriage  with  a  Catholic  per- 
son, unless  he  has,  since  his  baptism,  given  to 
the  other  a  legitimate  cause  for  separation. 

(a)  As  soon  as  a  declaration  of  the  Apostolic  See 
that  the  interpellation  may  be  omitted  has  been  ob- 
tained, the  convert  is  free  to  contract  a  new  marriage. 

( b)  If  the  interpellation  has  been  made  and  the 
infidel  in  answer  to  the  first  question  consents  to 
become  a  Christian  and  receives  Baptism,  the  mar- 
riage holds.    "When  the  husband  is  converted,"  says 
Innocent  III  (c.  8,  x,  iv,  19)  "and  his  wife  receives 
also  Baptism  before  he  was  lawfully  married  again, 
he  will  be  bound  to  take  her  back."    It  does  not  mat- 
ter in  that  case  how  long  the  wife  is  baptized  after 
the  husband. 

304.  (c)  If  the  infidel  should   answer  the  first 
question  affirmatively,  but  the  second  one  negatively, 
that  is,  would  consent  to  be  baptized,  but  refuse  to 
cohabit  or  live  peacefully,  the  Holy  Office  declared 
(July  8,  1891)  that  the  convert  may  marry  validly, 
provided  be  does  so  before  the  other  party  has  re- 
ceived Baptism.     (H.  O.,  April  30,  1908 ;  Canoniste 
Contemporain,  Aout,  1908,  p.  514.) 

Unreasonable  delay  in  complying  with  the  prom- 
ise to  receive  Baptism  might  be  a  sufficient  reason 
to  obtain  from  the  Ordinary  permission  to  contract  a 
new  marriage.  (H.  O.,  July  4,  1855;  Coll.  1113; 


PAULINE  PRIVILEGE  297 

Ami  du  Clerge,  Mars  7,  1912.)  Sufficient  time, 
however,  has  to  be  given  to  prepare  for  Baptism,  at 
least  six  months  or  more,  according  to  circumstances, 
of  which  the  Bishop  is  judge.  (H.  O.,  Nov.  29, 
1882.) 

If  the  infidel  refuses  to  become  a  Christian,  but 
consents  to  live  peaceably  with  the  convert,  the  Pau- 
line Privilege  is  not  applicable.  At  times  dispensa- 
tion is  granted  from  the  second  question  and  a  new 
marriage  permitted  as  soon  as  the  first  question  has 
been  answered  negatively.  Eegularly,  both  questions 
should  be  asked. 

If  the  infidel  answers  the  second  question  nega- 
tively, that  is,  if  he  refuses  to  live  with  the  baptized 
consort  or  to  live  peaceably,  the  marriage  may  be 
dissolved.  It  does  not  make  any  difference  to  what 
motives  the  refusal  is  due,  even  if  it  was  simply  a 
case  of  impossibility,  provided  the  Christian  party 
be  not  responsible  for  it.  The  Holy  Office  permitted 
marriage  to  a  convert  whose  wife  had  been  taken 
away  without  hope  of  recovery,  even  though  she 
would  be  willing  to  be  baptized  and  live  with  him, 
and  even  if  it  was  the  husband  himself  who  had  sold 
her,  provided  he  had  not  done  so  since  his  baptism. 
(H.  O.,  July  8,  1891;  June  12,  1850.) 

The  Christian  could  not  take  advantage  of  the 
Pauline  Privilege  if  he  had  given  the  other  a  just 
cause  for  separation,  as  by  committing  adultery ;  but 
the  adultery  must  be  certain,  committed  since  bap- 
tism, and  not  condoned. 

The  infidel  may  refuse  to  cohabit,  or  consent  to 
cohabit,  but  not  peaceably.  The  refusal  may  be  ex- 


298  MUTUAL  SEPARATION 

plicit,  implicit,  tacit,  equivalent.  He  refuses  equiva- 
lently  when  he  makes  cohabitation  physically  or  mor- 
ally impossible,  by  blaspheming  the  Creator,  leading 
the  Christian  to  sin,  retaining  concubines,  opposing 
the  Christian  education  of  the  children,  etc.  If  co- 
habitation was  made  impossible  by  some  other  per- 
son than  the  unbaptized  consort,  there  might  be  a 
sufficient  cause  for  separation,  but  not  for  applica- 
tion of  the  Pauline  Privilege.  (S.  C.  de  Prop.  Fide, 
March  5,  1816,  ad  6um.) 

(d)  At  times  the  promise  of  the  infidel  is  clearly 
not  sincere.  If  this  can  be  proved,  it  may  be  treated 
as  a  refusal  and  marriage  permitted.  But  as  fre- 
quently the  evidence  would  be  insufficient,  recourse 
should  be  had  to  the  Holy  See  or  to  the  Bishop  for 
dispensation. 

305.  (e)  The  right  to  contract  a  new  marriage  is 
not  lost  by  delay. 

Can.  1124.  Conjux  fidelis,  licet  post  susceptum 
baptismum  denuo  matrimonialiter  cum  parte  infideli 
vixerit,  jus  tamen  novas  celebrandi  nuptias  cum 
persona  catholica  non  amittit,  ideoque  potest  hoc 
jure  uti,  si  conjux  infidelis,  mutata  voluntate,  postea 
discedat  sine  justa  causa,  vel  jam  non  cohabitet 
pacifice  sine  contumelia  Creatoris. 

The  baptized  spouse  does  not  lose  the  right 
to  contract  a  new  marriage  by  continuing  the 
marital  life  with  the  infidel  party  after  baptism, 
and  that  right  may  be  used  later  if  the  infidel, 
having  become  of  a  different  mind,  withdraws 
without  just  cause  or  does  not  cohabit  peace- 
fully, without  blaspheming  the  Creator. 


PAULINE  PRIVILEGE  299 

The  matrimonium  legitimum  does  not  become 
ratum  by  the  baptism  of  one  of  the  spouses.  The 
fact  that  it  was  consummated  again  after  that  bap- 
tism does  not  change  its  character,  and  the  condi- 
tions for  the  application  of  the  Pauline  Privilege 
may  be  verified  after  several  months  the  same  as 
after  several  days. 

III.    SPECIAL  PROVISIONS 

Can.  1125.  Ea  quae  matrimonium  respiciunt  in 
constitutionibus  Pauli  III  Altitudo,  Jun.  1,  1537;  S. 
Pii  V  Romani  Pontificis,  Aug.  2,  1571;  Gregorii 
XIII  Populis,  Jan.  25,  1585,  quaeque  pro  peculiaribus 
locis  scripta  sunt,  ad  alias  quoque  regiones  in  eisdem 
adjunctis  extenduntur. 

306.  What  refers  to  marriage  in  the  Consti- 
tutions of  Paul  III,  Altitudo -,  June  1,  1537 ;  of 
St.  Pius  V,  Romani  Pontificis,  August  2,  1571 ; 
of  Gregory  XIII,  Populis,  January  25,  1585; 
and  was  decreed  for  some  particular  places,  is 
extended  to  Other  countries  in  the  same  condi- 
tions. 

1.  By  the  Constitution  of  Paul  III,  converts  in 
the  West  Indies,  who,  as  pagans,  had  married  sev- 
eral wives  in  accordance  with  the  custom  of  the  coun- 
try, and  did  not  remember  which  they  had  married 
first,  were  permitted  to  keep  the  one  they  preferred 
and  contract  a  regular  marriage  with  her ;  if  they  re- 
membered which  they  had  taken  first,  they  were  to 
retain  that  one,  and  dismiss  the  others.  Dispensa- 


300  MUTUAL  SEPARATION 

tion  was  thus  granted  from  interpellations  in  cer- 
tain cases  of  impossibility. 

307.  2.  To  Pius  V  it  had  been  represented  that 
as  among  the  pagan  Indians  it  was  the  custom  to 
have  several  wives  and  dismiss  them  for  trifling  rea- 
sons, the  practice  had  been  introduced  by  the  mis- 
sionaries, when  those  Indians  would  be  converted, 
to  allow  them  to  retain  the  wife  who  would  be  bap- 
tized with  her  husband;  and  because  it  happened 
frequently  that  the  one  thus  retained  was  not  the 
first  wife,  doubts  arose  about  the  validity  of  such 
marriages.  Seeing  that  it  would  be  hard  to  separate 
the  converted  husband  from  his  baptized  wife,  par- 
ticularly as  the  first  one  would  be  difficult  to  find, 
wishing  to  provide  for  the  welfare  of  the  Indians 
and  to  calm  the  conscience  of  the  missionaries,  the 
Pope  sanctioned  what  had  been  done  in  the  past  and 
approved  the  same  practice  for  the  future. 

In  this  case  the  dispensation  granted  from  both 
interpellations  is,  in  some  respects,  more  extensive 
than  in  the  preceding  one.  Whether  the  first  wife 
is  known  or  not,  the  convert  may  retain  the  one  who 
is  baptized  with  him.  She  must,  however,  be  bap- 
tized, which  was  not  required  by  the  Constitution 
Altitudo. 

The  convert  may  retain  the  wife  who  is  baptized 
together  with  him  even  if  the  first  one  is  willing 
to  be  baptized  later.  Would  he  have  the  same  privi- 
lege if  the  first  was  baptized  at  the  same  time,  or 
had  been  baptized  before  ?  This  concession  does  not 
clearly  cover  that  case. 


PAULINE  PRIVILEGE  301 

308.  3.  Gregory  XIII  went  still  further.  The 
case  proposed  to  him  was  that  of  married  infidels  of, 
Ethiopia,  Angola,  Brazil,  and  other  parts  of  the  West 
Indies,  who  were  made  captives  and  carried  off  into 
distant  countries,  so  that  if  later  on  either  the  party- 
left  at  home  or  the  one  carried  away  became  a  Cath- 
olic, it  was  impossible  to  reach  his  or  her  consort 
and  make  the  regular  interpellations.  The  Pope, 
considering  that  those  marriages  contracted  between 
infidels,  although  real  contracts,  are  not  so  firm  that 
they  can  not  be  dissolved  if  necessity  demands,  in 
virtue  of  his  supreme  authority,  gave  to  all  Ordi- 
naries and  pastors  in  those  countries,  to  all  the  priests 
of  the  Society  of  Jesus,  who  had  power  to  hear 
confessions  there,  faculties  to  grant  to  sincere  con- 
verts in  that  situation,  the  necessary  dispensation,  so 
that  without  interpellating  the  party  whom  they  mar- 
ried before  baptism,  or  without  waiting  for  the  an- 
swer, they  might  contract  a  new  marriage  with  any 
Christian,  provided  it  had  been  ascertained  in  a 
summary  and  extra  judicial  manner  that  the  party 
could  not  be  interrogated  or,  if  the  interpellation  had 
been  made,  no  answer  had  been  received  within  the 
fixed  time.  And  it  was  added  that  the  marriage  would 
be  valid  even  if  it  was  found  out  later  that  the  party 
was  prevented  from  answering  or  even  was  already 
baptized  at  the  time  the  second  marriage  was  con- 
tracted. This  last  clause  implies  that  not  only  dis- 
pensation is  granted  from  all  interpellations,  but  that 
a  marriage  which  had  become  ratified  by  the  baptism 
of  both  parties  is  dissolved.  Is  this  only  an  appli- 
cation of  the  Pauline  Privilege  ?  Some  maintain  it 


302  MUTUAL  SEPARATION 

is  nothing  more,  but  for  many  it  is  the  exercise,  by 
the  Pope,  of  the  power  of  dissolving  marriages  con- 
tracted in  infidelity,  even  after  they  have  become 
ratified,  provided  they  are  not  consummated  after 
ratification. 

The  above  concessions  are  now  extended  to  the 
whole  Church. 

IV.      DISSOLUTION    OF    THE    MABBIAGB    CONTRACTED 

IN  INFIDELITY 

Can.  1126.  Vinculum  prioris  conjugii,  in  infidelitate 
contract!,  tune  tantum  solvitur,  cum  pars  fidelis 
reapse  novas  nuptias  valide  iniverit. 

309.  The  bond  of  the  first  marriage,  con- 
tracted in  infidelity,  is  dissolved  only  when  the 
baptized    party    contracts    a    new    marriage 
validly. 

The  baptism  of  the  convert  and  the  refusal  of 
the  infidel  to  cohabit  do  not  dissolve  the  marriage, 
but  only  give  to  the  baptized  spouse  the  right  to  con- 
tract another;  and  it  is  when  he  actually  exercises 
that  right  that  the  first  marriage  is  dissolved,  pro- 
vided that  the  new  union  be  valid.  If  the  convert 
does  not  choose  to  marry  again,  the  marriage  con- 
tracted in  infidelity  holds  good  and  the  infidel  can 
not  contract  a  new  one  validly. 

V.     PRESUMPTION    IN    DOUBTFUL    CASES 

Can.  1127.  In  re  dubia  privilegium  fidei  gaudet 
favore  juris. 

310.  In  doubtful  cases  the  law  favors  the 
privilege  of  the  Faith. 


GENERAL  PRINCIPLE  303 

The  law  favors  the  privilege — that  is,  the  liberty 
— of  the  convert.  Thus,  when  it  is  doubtful  whether 
or  not  the  first  marriage  was  valid,  whether  the  con- 
ditions were  fulfilled  for  the  application  of  the  Paul- 
ine Privilege,  whether  the  convert  has  not  given 
the  other  party  legitimate  cause  for  separation  after 
baptism,  the  doubt  is  solved  in  favor  of  the  convert. 
Again,  if  the  validity  of  the  marriage  contracted  in 
infidelity  is  impugned  on  the  ground  of  want  of  con- 
sent, the  testimony  of  the  converted  party  is  accepted 
as  sufficient  evidence.  This  is  done  to  favor  con- 
versions, and,  according  to  some,  it  is  a  proof  that 
the  Church  could  dissolve  the  marriage  contracted  in 
infidelity  in  case  it  would  be  valid.  (De  Smet,  n. 
196;  Catholic  Encyclopedia,  Divorce.) 

ARTICLE  II 

LIMITED  DIVORCE,  OR  SEPARATION  AS 
TO  BED,  BOARD,  AND  DWELLING- 
PLACE 

1.°    GENERAL  PRINCIPLE 

Can.  1128.  Conjuges  servare  debent  vitae  conju- 
galis  communionem,  nisi  justa  causa  eos  excuset. 

311.  Married  persons  are  bound  to  live  to- 
gether unless  they  have  a  just  cause  for  separa- 
tion. 

1.  Conjugal  cohabitation  implies  community  of 
dwelling-place,  of  board,  of  bed  or  bedchamber,  at 
least  habitually  and  as  far  as  circumstances  permit, 


304  LIMITED  DIVORCE 

This  is  demanded  by  the  mutual  rights  and  duties 
of  husband  and  wife  and  the  very  end  of  marriage. 
As  the  husband  is  the  head  of  the  family,  the  wife 
ought,  as  a  rule,  to  follow  him  wherever  he  goes. 

312.  2.  Cohabitation,  however,  is  not  so  essential 
that  the  bond  of  marriage  can  not  exist  without  it 
or  that  separation  may  never  become  legitimate.  Seri- 
ous reasons  will  be  required,  for  separation  is  not 
the  normal  condition,  and  it  may  lead  to  disorders; 
but  occasions  may  arise  when  further  cohabitation 
becomes  unadvisable,  or  even  unseemly  and  morally 
impossible.     Cessation  of  married  life  without  dis- 
solution of  marriage  is  then  permitted.     The  Coun- 
cil of  Trent  maintained  the  discipline  of  the  Church 
on   this   point   against   the   attacks  of   Protestants. 
(Sessio  xxiv,  c.  8;  Esmein,  vol.  ii,  p.  309.) 

313.  3.  St.  Paul  speaks  (1  Cor.  vii,  5)  of  tem- 
porary cessation  of  marriage  relations  by  mutual  con- 
sent from  religious  motives.     This  belongs  to  the  in- 
ternal forum,  and  the  law  does  not  deal  with  such 
cases.     Nor  does  it  refer  to  complete  and  perma- 
nent separation  with  a  view  to  a  more  perfect  life; 
that  is,  the  reception  of  Orders  or  entrance  in  re- 
ligion.    This  also  is  done  by  mutual  consent,  and 
implies  no  violation  of  any  one's  rights.     It  is  per- 
missible as  long  as  it  does  not  lead  to  the  violation 
of  the  moral  law.    In  such  cases  the  Church  demands 
that  when  one  party  receives  Orders  or  embraces  the 
religious  life  the  other  party  should  also  enter  a  re- 
ligious community  or  at  least  take  a  vow  of  chastity 
in  the  world. 


CAUSE  OF  SEPARATION          305 

2.°      PRINCIPAL    CAUSE    OF    SEPARATION ADULTERY 

Can.  1129.  §  1.  Propter  conjugis  adulterium,  alter 
conjux,  manente  vinculo,  jus  habet  solvendi,  etiam 
in  perpetuum,  vitae  communionem,  nisi  in  crimen 
consenserit,  aut  eidem  causam  dederit,  vel  illud  ex- 
presse  aut  tacite  condonaverit,  vel  ipse  quoque  idem 
crimen  commiserit. 

§  2.  Tacita  condonatio  habetur,  si  conjux  inno- 
cens,  postquam  de  crimine  adulterii  certior  factus 
est,  cum  altero  conjuge  sponte,  maritali  affectu, 
conversatus  fuerit;  praesumitur  vero,  nisi  sex  intra 
menses  conjugem  adulterum  expulerit  vel  dereli- 
querit,  aut  legitimam  accusationem  fecerit. 

314.  §  1.  Adultery  on  the  part  of  one  of  the 
spouses,  without  breaking  the  bond,  gives  to 
the  other  spouse  cause  for  separation,  even  for- 
ever, unless  he  has  himself  consented  to  the 
crime,  or  been  responsible  for  it,  or  has  con- 
doned it  expressly  or  tacitly,  or  committed  the 
same  crime. 

§  2.  There  is  tacit  condonation  when  the  in- 
nocent spouse,  knowing  the  adultery,  has  freely 
continued  to  treat  the  guilty  one  with  marital 
affection;  condonation  is  presumed  when  the^ 
adulterous  party  has  not,  within  six  months, 
been  sent  away,  or  left,  or  duly  denounced. 

1.  Adultery,  being  directly  contrary  to  conjugal 
fidelity,  is,  of  its  nature,  a  cause  for  perpetual  sep- 
aration and  the  only  one  really  special  and  intrinsic 
to  marriage.  (Gasparri,  n.  1111.)  Hence,  it  is 
the  only  one  mentioned  in  the  Gospel.  (Matt,  v, 
19.)  In  the  first  centuries  of  the  Church,  there  was 


306  LIMITED  DIVORCE 

often  a  command,  and  the  duty  was  imposed  upon 
the  innocent  party,  to  separate  from  the  party  guilty 
of  adultery.  Even  at  present  the  dismissal  of  the 
guilty  party  might  become  a  duty,  if  continued  liv- 
ing with  an  adulterous  husband  and  wife  would 
seem  to  be  an  approval  of  the  crime.  Ordinarily  no 
such  obligation  exists. 

315.  2.  To  be  a  cause  for  separation,   adultery 
must  be  formal,  complete,  morally  certain;  not  at- 
tributable to  the  other  party,  partially  or  as  accom- 
plice, directly  or  indirectly;  not  compensated,  as  it 
were,  by  the  adultery  of  the  other  party;  not  con- 
doned tacitly  or  presumably.    All  sexual  intercourse 
outside  of  married  life  is  commonly  assimilated  to 
adultery,  even  the  unnatural  sin  of  sodomy. 

3.  The  continuation  of  married  life  after  acquir- 
ing the  certainty  that  the  other  party  has  committed 
adultery,  if  it  is  really  free,  implies  condonation  of 
the  crime;  and  it  is  specified  here  that  after  six 
months  condonation  is  presumed. 

3.°     TAKING  BACK    THE   GUILTY   PABTY 

Can.  1130.  Conjux  innocens,  sive  judicis  sententia 
sive  propria  auctoritate  legitime  discesserit,  nulla 
unquam  obligatione  tenetur  conjugem  adulterum 
rursus  admittendi  ad  vitae  consortium;  potest 
autem  eundem  admittere  aut  revocare,  nisi  ex  ipsius 
consensu  ille  statum  matrimonio  contrarium  sus- 
ceperit. 

316.  After  a  legitimate  separation,  whether 
effected  by  private  authority  or  by  a  sentence 
of  the  judge,   the   innocent   spouse   is   never 


TAKING  BACK  THE  GUILTY  PARTY  307 

obliged  to  admit  again  to  married  life  the  party 
guilty  of  adultery;  he  may,  however,  admit  or 
recall  her,  unless,  with  the  consent  of  the  inno- 
cent spouse,  the  guilty  one  has  embraced  a  state 
incompatible  with  matrimony. 

1.  Adultery  is  of  itself  a  cause  for  perpetual  sep- 
aration ;  the  innocent  party  has  no  further  obligations 
to  the  guilty  one,  at  least  no  obligations  of  justice. 
At  times,  charity  might  demand  that  after  amend- 
ment the  contrite  party  be  taken  back;  perhaps  in 
some  exceptional  cases  reasons  of  common  good  might 
impose  the  same  obligation. 

317.  2.  Canonists  generally  taught  that  if  the  in- 
nocent party  would  become  adulterous  in  turn  he 
would  lose  his  privileges  and  be  bound  to  take  back 
the  other  one  when  the  separation  had  been  effected 
by  private  authority.  If  there  had  been  an  interven- 
tion of  the  judge,  a  new  decision  would  be  required 
to  render  cohabitation  obligatory  again.  This  canon 
states  absolutely  that  the  innocent  party  is  free  for- 
ever. Still,  the  principle  of  compensation  is  admitted 
in  canon  1129,  §  1. 

3.  The  innocent  spouse  retains  the  right  to  demand 
the  return  of  the  guilty  one  unless  he  has  given 
up  his  right  by  granting  permission  to  the  other 
party  to  enter  a  state  incompatible  with  matrimony, 
and  that  permission  has  been  taken  advantage  of. 
This  last  condition  is  now  certainly  necessary.  If 
the  innocent  spouse  refuses  reconciliation,  if  within 
two  years  he  does  not  invite  the  other  one  to  return, 
if  he  receives  Orders  or  embraces  the  religious  life 


308  LIMITED  DIVORCE 

permanently,  he  is  supposed  to  give  up  his  rights  and 
leave  the  other  party  free  to  assume  obligations  which 
would  render  restoration  of  conjugal  relations  impos- 
sible. (Gasparri,  n.  1114.) 

4.°    OTHEE  CAUSES  FOB  SEPARATION 

Can.  1131.  §  1.  Si  alter  conjux  sectae  acatholicae 
nomen  dederit;  si  prolem  acatholice  educaverit;  si 
vitam  criminosatn  et  ignominiosam  ducat;  si  grave 
seu  animae  seu  corporis  periculum  alteri  facessat; 
si  saevitiis  vitam  communem  nimis  difficilem  red- 
dat,  haec  aliaque  id  genus,  sunt  pro  altero  conjuge 
totidem  legitimae  causae  discedendi,  auctoritate 
Ordinarii  loci,  et  etiam  propria  auctoritate,  si  de  eis 
certo  constet,  et  periculum  sit  in  mora. 

§  2.  In  omnibus  his  casibus,  causa  separationis 
cessante,  vitae  consuetudo  restauranda  est;  sed  si 
separatio  ab  Ordinario  pronuntiata  fuerit  ad  cer- 
tum  incertumve  tern  pus,  conjux  innocens  ad  id  non 
obligatur,  nisi  ex  decreto  Ordinarii  vel  exacto  tern- 
pore. 

318.  §  1.  If  one  of  the  married  parties  be- 
comes affiliated  with  a  non-Catholic  sect;  if  he 
gives  to  the  children  an  education  which  is  not 
Catholic ;  if  he  leads  a  criminal  and  disgraceful 
life ;  if  he  is  a  grave  danger  to  the  other  party's 
soul  or  body;  if  his  cruelty  renders  common 
life  too  hard ;  such  and  similar  causes  will  give 
the  other  spouse  the  right  to  withdraw  by  ap- 
pealing to  the  Ordinary  of  the  place ;  or  even  of 
his  own  authority  if  they  are  proved  with  cer- 
tainty and  there  is  danger  in  delay. 


OTHER  CAUSES  FOR  SEPARATION  309 

§  2.  In  all  these  cases,  when  the  cause  for 
separation  ceases,  the  married  life  ought  to  be 
resumed;  but  if  the  separation  has  been  pro- 
nounced by  the  Ordinary  for  a  definite  or  in- 
definite period  of  time,  that  obligation  is  not 
binding  on  the  innocent  party  until  it  has  been 
so  declared  by  the  judge  or  the  time  expires. 

319.  1.  There  are  other  causes  for  separation  be- 
sides adultery.  The  principal  ones  are  mentioned 
here,  by  way  of  example,  but  not  of  complete  enu- 
meration :  ( a )  Heresy,  so  often  called  spiritual  adul- 
tery, is  naturally  the  first  one.  To  it  is  assimilated 
apostasy  or  schism.  The  present  law  demands  more 
than  a  single  act  even  of  public  heresy ;  it  is  joining 
a  non-Catholic  sect  that  constitutes  the  cause  for  sep- 
aration. Apostasy,  indifferentism,  affiliation  to  a 
condemned  society  are  not  mentioned;  nor  heresy  or 
infidelity  anterior  to  the  marriage,  (b)  It  is  not 
every  neglect  of  duty  to  the  children,  but  giving  them 
an  education  which  is  not  Catholic,  that  the  law 
specifies  as  a  cause  for  separation,  (c)  Great  crimes 
were  generally  not  considered  by  canonists  as  a  suffi- 
cient cause,  but  they  are  mentioned  explicitly  here. 
(Lehmkuhl;  Catholic  Encyclopedia,  Divorce,  p.  64.) 
(d)  Danger  to  soul  or  body  must  be  a  really  grave 
one,  which  can  not  be  avoided  otherwise  than  by 
separation.  Such  would  be  "temptation  to  mortal 
sin,  to  the  denial  of  the  Faith,  to  the  abuse  of  the 
marriage  rights  .  .  . ;  danger  to  the  body  means 
any  great  danger  to  life  or  health,  as  well  as  other 
intolerable  conditions,  plotting  against  one's  life, 


310  LIMITED  DIVORCE 

well-grounded  fear  of  dangerous  contagion,  insanity, 
serious  and  constant  quarreling,"  etc.  (Gasparri, 
n.  1117.) 

320.  2.  In  all  those  and  similar  cases  recourse 
must  be  had  to  the  Ordinary  that  he  may  pronounce 
the  separation,  unless  the  cause  be  proved  with  cer- 
tainty and  there  be  danger  in  delay.  Heresy,  even 
when  clearly  proved,  is  no  exception  to  this  rule, 
as  was  held  by  some  canonists.  (The  Third  Plenary 
Council  of  Baltimore,  n.  126,  forbids  having  recourse 
to  the  civil  courts  without  consulting  the  Ordinary. 
A  regular  trial  is  not  required,  but  only  the  Bishop's 
permission,  where  such  custom  exists. — Tanquerey, 
De  Matrimonio,  n.  937.) 

Separation  in  the  cases  now  under  consideration 
is  only  temporary  and  lasts  as  long  as  the  cause 
lasts.  It  may  become  perpetual  de  facto  if  the  cause 
lasts  as  long  as  the  life  of  the  parties.  May  it  be 
made  perpetual  antecedently  also  by  reason  of  cir- 
cumstances, so  that  the  innocent  party  would  be  free, 
v.g.,  to  enter  a  Religious  Order  ?  Canonists  answered 
that  it  might,  in  several  cases,  under  certain  condi- 
tions. The  present  canon  does  not  mention  any  such 
case.  In  this,  separation  for  one  of  the  causes  men- 
tioned here  differs  from  separation  because  of  adul- 
tery ;  it  differs  also  in  another  respect,  that  ordinarily 
it  ought  not  to  be  effected  by  private  authority,  whilst 
in  case  of  adultery  the  intervention  of  the  Ordinary 
is  not  explicitly  required." 


EDUCATION  OF  CHILDREN       311 

5.°    EDUCATION  OF  CHILDREN 

Can.  1132.  Instituta  separatione,  filii  educandi  sunt 
penes  conjugem  innocentem,  et  si  alter  conjugum 
sit  acatholicus,  penes  conjugem  catholicum,  nisi  in 
utroque  casu  Ordinarius  pro  ipsorum  filiorum  bono, 
salva  semper  eorundem  catholica  educatione,  aliud 
decreverit. 

321.  After  the  separation,  the  education  of 
the  children  belongs  to  the  innocent  spouse;  if 
one  of  the  parties  is  a  non-Catholic,  it  belongs 
to  the  Catholic;  unless  in  either  case,  for  the 
good  of  the  children  and  their  Catholic  educa- 
tion being  duly  provided  for,  the  Ordinary  de- 
cides otherwise. 

322.  1.  The  innocent  spouse  ought  regularly  to  be 
favored,  unless  he  be  a  non-Catholic.     In  the  latter 
case  the  Catholic  party  has  the  preference  because 
of  his  faith  and  also  because  the  education  of  the 
children  will,  as  a  rule,  be  safer  in  his  hands.     The 
good  of  the  children  is  what  should  be  considered 
primarily  and,  first  of  all,  the  safety  of  their  faith. 
The  judge  may  give  the  children  to  the  non-Catholic 
parent  if  he  deems  it  to  their  advantage,  but  he  has 
always  to  see  that  they  receive  a  good  Catholic  edu- 
cation. 

323.  2.  In  the  preceding  canons  it  is  always  ques- 
tion of  the  Ordinary,  for  matrimonial  causes  among 
Christians  are  reserved  exclusively  to  the  ecclesias- 
tical authority.     From  a  moral  standpoint  it  may, 
however,  be  permitted,  at  times,  for  a  Catholic  to 


312  LIMITED  DIVORCE 

apply  to  the  civil  court  for  corporal  separation  under 
certain  conditions.     (De  Smet,  n.  211.) 

3.  It  is  question  not  of  the  judge,  but  of  the  Ordi- 
nary, which  implies  that  those  matters  are  not  nec- 
essarily decided  in  court  after  a  regular  trial ;  it  may 
be  lawful,  for  serious  reasons,  or  where  the  custom 
exists,  to  proceed  extra-judicially  and  be  satisfied 
with  an  informal  decision  of  the  Ordinary. 


CHAPTER  XI 
REVALUATION  OF  MAERIAGE 

ARTICLE  I 
SIMPLE  REVALUATION 

1.°     GENERAL  CONDITIONS 

Can.  1133.  §  1.  Ad  convalidandum  matrimonium 
irritum  ob  impedimentum  dirimens,  requiritur  ut 
cesset  vel  dispensetur  impedimentum  et  consensum 
renovet  saltern  pars  impedimenti  conscia. 

§  2.  Haec  renovatio  jure  ecclesiastico  requiritur 
ad  validitatem,  etiamsi  initio  utraquc  pars  con- 
sensum praestiterit  nee  postea  revocaverit. 

324.  §  1.  To  revalidate  a  marriage,  null  be- 
cause of  a  diriment  impediment,  it  is  necessary 
that  the  impediment  cease  or  be  dispensed 
from,  and  that  the  marriage  consent  be  renewed 
by  the  party  at  least  who  knows  of  the  impedi- 
ment. 

§  2.  This  renewal  is  demanded  by  the  eccle- 
siastical law  for  the  validity,  even  if  the  parties 
gave  their  consent  in  the  beginning  and  never 
withdrew  it. 

1.  Some  impediments  cease  of  themselves,  like  age ; 
others  can  be  removed  by  the  parties  concerned,  like 
disparity  of  worship ;  others  can  be  removed  only  by 
dispensation.  The  cessation  of  the  impediment  is 
necessary  for  revalidation,  but  not  sufficient.  The 

313 


314    REVALIDATION  OF  MARRIAGE 

consent  has  to  be  renewed  not  only  when  it  was  want- 
ing in  the  beginning,  but  in  all  cases  of  simple  re- 
validation. 

2.  In  itself  that  renewal  would  not  be  necessary, 
but  it  is  demanded  by  the  ecclesiastical  law,  as  is 
explicitly  declared  here;  only  it  is  no  longer  neces- 
sary in  all  cases  that  it  be  renewed  by  both  parties 
if  the  impediment  is  known  to  only  one  of  them. 

2.°     EENEWAL  OF  THE  CONSENT 

Can.  1134.  Renovatio  consensus  debet  esse  novus 
voluntatis  actus  in  matrimonium  quod  constet  ab 
initio  nullum  fuisse. 

325.  The  renewal  of  the  consent  must  be  a 
new  act  of  the  will  ratifying  a  marriage  known 
to  have  been  null  from  the  beginning. 

That  the  consent  is  renewed  means  that  a  new  con- 
sent, independent  of  the  first  one,  is  given;  and  this 
bupposes  knowledge  of  the  nullity  of  the  first.  As 
long  as  the  parties  do  not  know  that  their  marriage 
is  invalid,  there  is  only  continuance  of  the  same  con- 
sent. Peaceful  cohabitation  and  marriage  relations 
for  years  after  the  disappearance  of  the  impediment 
do  not  validate  the  marriage,  unless  at  least  one  of 
the  parties  is  aware  of  the  defect  in  the  first  contract. 

3.°    MODE"  OP  RENEWAL 

Can.  1135.  §  1.  Si  impedimentum  sit  publicum,  con- 
sensus ab  utraque  parte  renovandus  est  forma  jure 
praescripta. 


SIMPLE  REVALIDATION          315 

§  2.  Si  sit  occultum  et  utrique  parti  notum,  satis 
est  ut  consensus  ab  utraque  parte  renovetur  priv- 
atim  et  secreto. 

§  3.  Si  sit  occultum  et  uni  parti  ignotum,  satis  est 
ut  sola  pars  impediment!  conscia  consensum  priv- 
atim  et  secreto  renovet,  dummodo  altera  in  consensu 
praestito  perseveret. 

326.  §  1.  If  the  impediment  is  public,  the 
consent  must  be  renewed  by  both  parties  in 
the  form  prescribed  by  law. 

§  2.  If  the  impediment  is  occult  and  known 
to  both  parties,  it  is  enough  that  the  consent 
be  renewed  by  both  parties  privately  and  in 
secret. 

.  §  3.  If  the  impediment  is  occult  and  known 
to  only  one  of  the  parties,  it  is  enough  that  the 
party  who  is  conscious  of  the  impediment 
should  renew  his  consent,  provided  the  other 
party's  consent  perseveres. 

1.  When  the  impediment  is  public,  the  marriage 
is  non-existent  in  the  external  forum,  consequently  it 
ought  to  be  celebrated  with  the  usual  formalities  in 
presence  of  the  priest  and  two  witnesses. 

327.  2.  When  the  impediment  is  occult  in  fact 
and  by  its  nature,  before  the  public  the  marriage  is 
valid,  and  therefore  there  is  no  need  of  celebrating 
it  publicly.    Renewal  of  the  consent  privately  with- 
out witnesses,  although  always  externally,  will  suffice. 

3.  If  the  occult  impediment  is  known  to  both 
parties,  both  have  to  renew  the  consent;  if  to  only 
one,  it  will  be  enough  that  this  one  renew  the  con- 


316    REVALUATION  OF  MARRIAGE 

sent  privately  and  secretly.  There  is  no  obligation 
any  more,  in  that  case,  to  reveal  the  impediment  to 
the  other  party  and  obtain  his  renewal,  which  often 
may  offer  real  difficulties.  To  overcome  them,  can- 
onists had  been  obliged  to  suggest  various  expedients 
which  will  gladly  be  dispensed  with.  The  law  can 
declare  the  renewal  of  consent  by  the  party  uncon- 
scious of  the  impediment  unnecessary,  since  no  re- 
newal is,  in  itself,  essential. 

4.°    MABEIAGE  NULL  FOB  WANT  OF  CONSENT 

Can.  1136.  §  1.  Matrimonium  irritum  ob  defectum 
consensus  convalidatur,  si  pars  quae  non  consen- 
serat,  jam  consentiat,  dummodo  consensus  ab  al- 
tera  parte  praestitus  perseveret. 

§  2.  Si  defectus  consensus  fuerit  mere  internus, 
satis  est  ut  pars  quae  non  consenserat,  interius 
consentiat. 

§  3.  Si  fuerit  etiam  externus,  necesse  est  con- 
sensum  etiam  exterius  manifestare,  vel  forma  jure 
praescripta,  si  defectus  fuerit  publicus,  vel  alio 
modo  privato  et  secreto,  si  fuerit  occultus. 

328.  §  1.  Marriage  null  for  want  of  consent 
is  validated,  if  the  party  who  had  not  con- 
sented does  consent,  provided  that  the  consent 
given  by  the  other  party  perseveres. 

§  2.  If  the  want  of  consent  was  merely  in- 
ternal, it  is  enough,  that  the  party  who  did 
not  give  his  consent  give  it  now  interiorly. 

§  3.  If  the  want  of  consent  was  external  also, 
it  is  necessary  to  give  the  consent  internally 
and  to  manifest  it  also  externally ;  in  the  form 


SIMPLE  REVALUATION          317 

prescribed  by  law,  if  the  want  of  consent  was 
public ;  or,  if  it  was  external,  but  occult,  in  some 
other  private  and  secret  manner. 

1.  When  marriage  is  null  for  want  of  consent,  no 
dispensation  is  needed  or  possible,  the  only  remedy 
is  that  the  consent  which  is  wanting  be  given.  The 
one  given  before  has  not  to  be  renewed,  provided  it 
was  not  withdrawn ;  the  Church  does  not  demand  that 
renewal,  and  it  is  not  in  itself  necessary.  There 
is  no  question  in  this  case  of  renewal  of  consent  by 
both  parties,  but  of  the  giving  of  consent  by  the 
one  who  did  not  give  it  before.  Is  it  necessary  that 
the  party  now  giving  consent  should  know  that  the 
previous  one  was  null  or  that  the  marriage  was  in- 
valid? Here  we  have  not  a  renewal;  the  consent 
now  given  will  necessarily  be  new.  To  revalidate  a 
marriage  null  because  of  fear,  knowledge  of  the  nul- 
lity is  required.  (A.  A.  S.,  vol.  iv,  Jan.  11,  1912, 
p.  188,  Causa  Osnabru. ;  vol.  v,  March  1,  1913,  p. 
322,  Ebora;  Gennari-Boudinhon,  Consultation  119; 
Wernz,  n.  648;  De  Smet,  n.  408.)  But  a  marriage 
null  for  want  of  consent  is  not  considered  here  as 
null  because  of  an  impediment;  when  it  is  null  be- 
cause of  fear  it  is  null  because  of  want  of  consent 
and  also  at  least  probably  because  of  an  ecclesiastical 
impediment. 

329.  2.  The  consent  has  to  be  supplied  as  far  as 
it  is  wanting;  if  the  want  is  purely  internal,  the 
remedy  does  not  need  to  be  public,  it  suffices  that  the 
consent  be  given  internally  and  it  is  implied  in  the 
spontaneous  continuation  of  married  life. 


318    REVALUATION  OF  MARRIAGE 

3.  If  the  want  of  consent  is  publicly  known,  the 
giving  of  the  consent  ought  to  be  public ;  that  is,  take 
place  at  least  in  presence  of  the  priest  and  two  wit- 
nesses. At  times,  to  remove  scandal,  it  may  be  nec- 
essary that  it  be  public  in  that  sense  that  it  be  made 
commonly  known,  but  this  is  never  required  for  the 
validity.  If  the  want  of  consent  would  be  external, 
but  still  occult,  as,  if  it  had  been  manifested  in 
presence  of  only  one  witness  or  none  at  all,  the  con- 
sent would  have  to  be  given  externally,  but  there 
would  be  no  obligation  of  using  the  canonical  public 
form ;  it  might  be  given  privately.  Continuation  of 
married  life  is  an  external  manifestation  of  consent. 


5.°    MAEBIAQE  NULL  FOB  THE  WANT  OP  THE 
BEQUIBED   FOBM 

Can.  1137.  Matrimonium  nullum  ob  defectum 
formae,  ut  validum  fiat,  contrahi  denuo  debet  legi- 
tima  forma. 

330.  Marriage  null  for  want  of  form,  to  be- 
come valid,  must  be  contracted  again  in  the 
prescribed  form. 

Regularly  there  is  no  dispensation  from  the  for- 
malities prescribed  for  the  valid  celebration  of  mar- 
riage; if  they  have  been  omitted,  the  parties  have 
only  to  go  and  renew  their  consent  in  presence  of 
the  priest  and  of  two  witnesses. 


REVALUATION  IN  RADICE       319 

ARTICLE  II 
REVALUATION  IN  RADICE 

1.°    ITS  NATUBB 

Can.  1138.  §  1.  Matrimonii  in  radice  sanatio  est 
ejusdem  convalidatio,  secumferens,  praeter  dispen- 
sationem  vel  cessationem  impediment!,  dispensa- 
tionem  a  lege  de  renovando  consensu,  et  retrotrac- 
tionem,  per  fictionem  juris,  circa  effectus  canonicos, 
ad  praeteritum. 

§  2.  Convalidatio  fit  a  mom  en  to  concessionis 
gratiae;  retrotractio  vero  intelligitur  facta  ad  ma- 
trimonii  initium,  nisi  aliud  expresse  caveatur. 

§  3.  Dispensatio  a  lege  de  renovando  consensu 
concedi  etiam  potest  vel  una  tantum  vel  utraque 
parte  inscia. 

331.  §  1.  The  revalidation  of  a  marriage  in 
radice  is  its  revalidation,  implying,  besides  a 
dispensation  from,  or  the  disappearance  of, 
the  impediment,  the  dispensation  from  the  ob- 
ligation of  renewing  the  consent,  and,  by  a  fic- 
tion of  law,  retroaction  as  regards  the  canonical 
effects. 

§  2.  The  revalidation  takes  place  when  the 
favor  is  granted ;  the  retroaction  is  understood 
to  reach  back  to  the  beginning  of  the  marriage, 
unless  the  contrary  be  stated. 

§  3.  The  dispensation  from  the  obligation  of 
renewing  the  consent  may  be  granted  without 
the  knowledge  of  one  or  of  either  party. 

1.  The  revalidation  in  radice  differs  from  simple 
revalidation  in  two  things — the  renewal  of  the  con- 


320    REVALIDATION  OF  MARRIAGE 

sent  is  not  required  and,  by  a  fiction  of  law,  the 
marriage  is  considered  as  valid  from  the  beginning, 
as  far  as  its  canonical  effects  are  concerned.  There 
is,  then,  as  in  a  simple  revalidation,  a  dispensation 
from  the  impediment  which  annulled  the  marriage, 
unless  it  has  disappeared,  and,  moreover,  a  dispen- 
sation from  the  renewal  of  the  consent,  and  a  retro- 
active effect  by  which,  v.g.,  children  born  of  that 
invalid  marriage  are  considered  legitimate  as  if  the 
marriage  had  been  contracted  validly.  The  marriage 
itself,  as  is  evident,  and  as  is  explicitly  stated  to 
avoid  misunderstanding,  becomes  valid  only  from  the 
moment  the  dispensation  is  granted,  and  the  retro- 
action concerns  only  its  canonical  effects.  The 
Church  simply  removes  those  disabilities  which  she 
had  decreed,  restoring,  for  instance,  to  illegitimate 
children  the  privileges  enjoyed  by  those  born  of  legit- 
imate wedlock,  and  of  which  she  had  deprived  them. 

332.  2.  By  that  fiction  of  law  the  marriage  may 
be  considered,  in  regard  to  its  effects,  as  valid  from 
the  beginning  or  from  a  certain  given  moment.  Reg- 
ularly, it  is  in  the  first  sense  that  the  revalidation  is 
to  be  understood. 

3.  The  dispensation  in  radice  may  also  be  total  or 
partial ;  it  may  have  all  its  effects  or  only  some.  At 
times  only  one  of  the  parties  is  dispensed  from  re- 
newing the  consent,  as  when  one  of  the  parties  is 
willing  to  renew  his,  and  the  other  is  not  or  might 
not  be  if  asked,  although  the  consent  previously  given 
has  not  been  withdrawn.  The  dispensation  may  also 
be  granted  to  both  parties  without  their  knowing  it. 
Ordinarily,  at  least  one  of  the  parties  knows  of  the 


REVALIDATION  IN  RADICE       321 

dispensation  and  accepts  it.  Some  indults  grant  the 
power  of  dispensing  in  radice  only  on  that  condition. 
Still  it  is  not  in  itself  necessary,  nor  required  in 
some  special  cases  when  it  would  be  difficult  to  com- 
ply with  it,  as  when  there  would  be  a  great  many 
marriages  to  revalidate  which  were  null  through  no 
fault  of  the  parties. 

The  dispensation  in  radice  may  likewise  be 
granted  without  any  retroactive  effects. 

2.°    WHEN   IS   IT   POSSIBLE? 

Can.  1139.  §  1.  Quodlibet  matrimonium  initum 
cum  utriusque  partis  consensu  naturaliter  suffi- 
ciente,  sed  juridice  inefficaci  ob  dirimens  impedi- 
mentum  juris  ecclesiastic!  vel  ob  defectum  legitimae 
formae,  potest  in  radice  sanari,  dummodo  consensus 
perseveret. 

§  2.  Matrimonium  vero  contractual  cum  impedi- 
mento  juris  naturalis  vel  divini,  etiamsi  postea  im- 
pedimentum  cessaverit,  Ecclesia  non  sanat  in  radice, 
ne  a  momento  quidem  cessationis  impedimenti. 

333.  §  1.  Any  marriage  contracted  on  both 
sides  with  a  consent  naturally  sufficient  but 
juridically  ineffective  because  of  a  diriment 
impediment  of  the  ecclesiastical  law,  or  for 
want  of  the  required  form,  can  be  revalidated 
in  radice,  provided  the  consent  perseveres. 

§  2.  But  a  marriage  contracted  with  an  im- 
pediment of  the  natural  or  divine  law,  even  if 
the  impediment  afterwards  disappears,  the 
Church  does  not  revalidate  in  radice,  not  even 
from  the  moment  the  impediment  has  ceased 


322    REVALIDATION  OF  MARRIAGE 

1.  The  Church  can  and  does  revalidate  in  radice 
marriages  which  were  null  only  because  of  some  ec- 
clesiastical obstacle.    The  ecclesiastical  authority  can 
undo  what  it  has  done. 

2.  When  a  marriage  is  null  by  the  natural  or  di- 
vine law  the  Church  can  not  revalidate  it  as  long  as 
the  cause  of  nullity  continues.     Once  the  cause  of 
nullity  has  ceased,  the  Church  could  probably  dis- 
pense in  radice,  the  dispensation  going  back  to  the 
moment  when  the  marriage  became  possible;  but  she 
does  not.     The  effect  of  the  dispensation  could  not 
go  back  to  the  beginning;  that  is,  the  Church  could 
not  treat  as  valid,  even  by  a  fiction  of  law,  a  mar- 
riage which  is  invalid  by  divine  right.     (De  Smet, 
n.  408 ;  Gennari,  Consultationes  morales,  vol.  ii,  p. 
385;  Ami,  Mai  17,  1906,  p.  407;  H.  O.,  March  2, 
1904;  H.  Pen.,  April  25,  1895.) 

3.°  WHEN  is  IT  IMPOSSIBLE! 

Can.  1140.  §  1.  Si  in  utraque  vel  alterutra  parte 
deficiat  consensus,  matrimonium  nequit  sanari  in 
radice,  sive  consensus  ab  initio  defuerit,  sive  ab 
initio  praestitus,  postea  fuerit  revocatus. 

§  2.  Quod  si  consensus  ab  initio  quidem  defuerit, 
sed  postea  praestitus  fuerit,  sanatio  concedi  potest 
a  momento  praestiti  consensus. 

334.  §  1.  If  the  consent  of  one  or  both  par- 
ties is  wanting,  the  marriage  cannot  be  revali- 
dated  in  radice,  whether  the  consent  was  want- 
ing from  the  beginning,  or  whether  it  was  given 
in  the  beginning  and  afterwards  withdrawn. 


REVALIDATION  IN  RADICE       323 

§  2.  If  the  consent  was  wanting  in  the  be- 
ginning, but  given  later,  the  revalidation  can 
be  granted  from  the  moment  the  consent  was 
given. 

The  marriage  is  really  contracted  and  the  sacra- 
ment received  when  the  dispensation  is  granted ;  since 
the  consent  constitutes  the  essence  of  the  contract, 
it  is  necessary  and  sufficient  that  it  should  exist  at 
the  moment  the  contract  is  made. 

4.°    BY  WHOM   IS   IT   GBANTED? 

Can.  1141.  Sanatio  in  radice  concedi  unice  potest 
ab  Apostolica  Sede. 

335.  Revalidation  in  radice  can  be  granted 
only  by  the  Apostolic  See. 

The  canons  which  deal  with  the  Bishop's  power 
of  dispensing  in  cases  of  necessity  or  of  danger  of 
death  must  be  understood  of  simple  dispensations.  To 
dispense  in  radice  requires  a  special  delegation  from 
the  Holy  See. 


CHAPTER  XII 
OF  SECOND  MARRIAGES 

Can.  1142.  Licet  casta  viduitas  honorabilior  sit, 
secundae  tamen  et  ulteriores  nuptiae  validae  et 
licitae  sunt,  firmo  praescripto  can.  1069,  §2. 

336.  Although  a  chaste  widowhood  be  more 
honorable,  second  and  further  marriages  are 
valid  and  lawful,  the  prescriptions  of  can.  1069, 
§  2,  being  observed. 

Can.  1143.  Mulier  cui  semel  benedictio  sollemnis 
data  sit,  nequit  in  subsequentibus  nuptiis  earn 
iterum  accipere. 

A  woman  who  has  once  received  the  solemn 
blessing  can  not  receive  it  again  in  subsequent 
marriages. 

337.  1°.  The  teaching  of  the  Church  in  regard  to 
second  marriages  has  always  been  the  same  as  that 
of  St.  Paul,  who  exhorts  widows  to  remain  unmar- 
ried, without  imposing  it  as  an  obligation,  rather  ad- 
vising marriage  when  the  single  life  might  be  too 
dangerous.     (Rom.  vii,  2,  3 ;  1  Cor.  vii,  39,  40 ;  1 
Tim.  v,  14;  cf.  Hermas,  lib.  ii,  Mand.  iv,  n.  4;  Ter- 
tullian,  Ad  uxorem,   ii,   1.)      The  Montanists  and 
Novatians,  who  absolutely  forbade  second  marriages, 
were  condemned.     (Nice,  c.  8.) 

Those  marriages,  however,  were  looked  upon  with 
a  disfavor,  which  was  expressed  by  some  ecclesias- 
tical writers  in  such  strong  terms  that  at  times  they 

325 


326          OF  SECOND  MARRIAGES 

seem  to  amount  to  a  formal  condemnation.  (Perrone, 
De  Matrimonio  Christiano,  vol.  iii,  p.  73 ;  Chardon, 
Histoire  des  Sacrements,  Du  Mariage,  c.  iv,  art.  1 ; 
Martene,  De  antiquis  Ecclesiae  ritibus,  lib.  i,  c.  ix, 
artl.) 

In  the  Greek  Church,  from  the  beginning  of  the 
fourth  century,  second  marriages  were  subjected  to 
various  penances.  (Neocsesarea,  314,  c.  3,  7;  An- 
cyra,  358,  c.  19 ;  Laodicea,  380  [  ?]  c.  1 ;  St.  Basil,  ad 
Amphilochium.)  Third  and  fourth  marriages  were 
treated  still  more  severely  until  they  were  condemned 
as  unlawful  or  even  as  invalid  except  under  certain 
conditions.  This  was  done  formally  in  the  tenth  cen- 
tury after  the  discussions  to  which  the  marriage  of 
the  emperor  Leo  VI  gave  rise.  In  the  Latin  Church 
they  remained  always  lawful. 

Some  traces  of  the  severer  discipline  are  found  in 
the  penitential  books  of  the  West,  but  they  had  dis- 
appeared by  the  time  Gratian  compiled  his  Decretum. 
(C.  xxxi,  q.  1.) 

338.  2°.  As  a  sign  of  disfavor,  in  the  Greek 
Church,  the  crowning  and,  in  the  Latin  Church,  the 
solemn  nuptial  blessing,  were,  at  a  very  early  date, 
refused  to  second  marriages.  Originally  the  bless- 
ing was  denied  whenever  one  of  the  parties  had  been 
married  or  had  been  blessed  before.  Then  the  prac- 
tice was  introduced  in  some  countries  of  granting  it 
when  the  bride  had  not -received  the  blessing  already; 
and  the  Roman  Ritual  permitted  to  retain  that  prac- 
tice where  it  existed.  A  decree  of  the  Holy  Office, 
August  31,  1881,  was  interpreted  by  many  as  imply- 
ing that  it  might,  or  even  should,  be  adopted  every- 


OF  SECOND  MARRIAGES          327 

where.     The  question  is  now  settled  by  the  present 
canon. 

339.  3°.  Under  the  ancient  Roman  law  a  widow 
was  forbidden,  under  pain  of  infamy,  to  contract  a 
new  marriage  before  ten,  or,  by  the  law  of  Theo- 
dosius,  twelve,  months  had  elapsed  since  the  death 
of  the  first  husband.  Similar  provisions  are  found 
in  the  Frankish  laws  and  in  modern  civil  codes. 
They  were  adopted  also  by  some  ecclesiastical  canons, 
but  these  were  abrogated  by  Innocent  III.  (C.  ult. 
x,  iv,  De  Secundis  Nuptiis.)  It  has  only  been  recom- 
mended since,  as  it  is  by  the  present  canon,  to  avoid 
overhasty  marriages,  which  have  something  unbe- 
coming even  when  they  are  not  likely  to  give  rise  to 
unfavorable  suspicions  or  to  other  difficulties.  Pas- 
tors are  directed  to  use  their  influence  to  prevent 
such  unions,  but  not  to  forbid  them.  The  Ordinary 
might,  no  doubt,  in  particular  cases,  prohibit  them, 
for  grave  reasons.  (Dictionnaire  de  Theologie  Cath- 
olique,  Bigamie;  Esmein,  vol.  ii,  p.  99.) 


INDEX 


(The  references  are  to  the  marginal  numbers) 

A  B 

Abduction:  ancient  discipline,  Banns:   origin  of,  42;   obli- 

153,  154;     various    kinds,  gation,   44;    mode   of   pro- 

154,  155 ;  present  discipline,  mulgation,  45 ;  place,  46-48 ; 
conditions   for  the  impedi-  time,  49;    form,   50-53;   in 
ment,  156,  157;  extent,  158;  mixed  marriages,  53;   dis- 
dispensation   from   it,   157;  pensation      from,      56-57; 
circumstance   of   abduction  sanction,  58 ;  repeating  pub- 
to  be  mentioned  in  petition  lications,  59;  when  impedi- 
for  dispensations,  159.  ment  is  discovered,  62. 

Abrogation   of    impediments,  Baptism:   required  for  mar- 

.  '°.  riage,  40,  41 ;  how  proved, 

Adoption,    see    Relationship,  131 . 141,  148;  doubtful  Bap- 

.  legal-  tism,  146 ;  to  be  investigated 

Age:  impediment  of,  134;  for  in  each  casC)  147.  presumed 

marriage,   134-136.  Baptism,  148. 

Adultery:  as  an  impediment,  Betrothals:    19    20;   by   nat- 

see .Crime;  cause  of  sepa-  ,   ,         21_23     b/ecde. 

ration  314 ;  conditions,  315 ;  ia    .    j  \        24:27  *  nature 

perpetuity,  316,  317;   adul-  d  conditio'ns    21 ;  effects, 

tery    of     converted     party  22    24    27     fo;mal'ities    21 

and  Pauline  Privilege,  304.  25   26'    b  '              26;  dis- 

Affimty:     former     discipline,  soiut;on   23   27 

171,  172;  present  discipline,  solutlon'  a>  "•     ... 

173;    nature    of    the    im-  BI"^ng :  u  sole"1"' . £2'    %l> 

pediment,  174;  extent  and  264;  when  forbidden,  278, 

multiplication,      175;      dis-  Z7y- 

pensation,  176.  Bishop:  power  of,  to  set  up, 

Apostates,      marriage     with,  abrogate,   dispense   from, 

130,  131.  impediments,  74,  83,  84,  87- 

Assistance  at  marriages :  con-  89 ;  to  dispense  from  banns, 

ditions    for    validity,    241;  55,  56;  see  also  Ordinary. 

permission     for,     242 ;     by  Bond :  of  previous  marriage, 

whom   needed   or   granted,  140;    how    removtd,    141; 

242,    246;    to    whom,    242,  double    sentence    required. 

243 ;  conditions  for  lawful  141 ;  dissolution  by  vow,  by 

assistance,  244.  Papal     dispensation,      142, 

Assistant,    needs    permission  -     291ff ;    by    death,    143 ;    by 

to  assist  at  marriages,  237.  Pauline  Privilege,  296,  309. 
329 


330 


INDEX 


Care  of  children,  see  Chil- 
dren. 

Casus  Apostoli,  see  Pauline 
Privilege. 

Casus  Perplexus,  87,  88. 

Catholics:  who  is  considered 
as  Catholic  in  relation  to 
marriage  form,  257,  258. 

Causes  for  separation :  adul- 
tery, 314;  others,  318;  per- 
petual, 315,  316;  tempo- 
rary, 320. 

Celebration :  of  marriage, 
mixed,  150,  263,  265 ;  Cath- 
olic, 261-264;  time,  277-279; 
place,  280,  281. 

Censures :  absolution  from, 
101;  marriage  of  persons 
under,  132. 

Children :  consent  of  parents 
to  marriage  of  children, 
66;  education  of  children 
after  separation  of  parents, 
321,  322. 

Church:  authority  of,  to 
regulate  marriage,  14;  to 
set  up  impediments,  73-75. 

Civil  effects  of  -marriage.  14, 
15. 

Civil  Ruler,  and  marriage, 
15-18. 

Clandestine :  betrothals,  25 ; 
marriage,  see  Form  of 
marriage ;  revalidation  of 
clandestine  marriage,  330. 

Cohabitation :  of  spouses, 
311;  obligation  of,  312; 
dispensation  from,  313. 

Communion  before  marriage, 
65. 

Compensation  for  dispensa- 
tion, 106,  107. 

Componenda,   107. 

Concubinage,  an  impediment, 
178. 

Condition :  permitted  in  be- 
trothals, 26;  in  marriage, 
nature  and  species,  218, 


219;  differs  from  mode, 
cause,  interpretative  inten- 
tion, antecedent  error,  219; 
ancient  legislation,  221 ; 
present  legislation,  222 ; 
conditions  past  or  present, 
223;  future  necessary,  im- 
possible, or  dishonest,  224; 
possible,  contingent,  and 
honest,  225;  against  sub- 
stance of  marriage,  226, 
227;  of  not  having  chil- 
dren, 227;  of  abusing  mar- 
riage rights,  228;  of  not 
receiving  sacrament,  229 ; 
proof  of  condition,  230; 
servile  condition,  197. 

Confession,  before  marriage, 
65. 

Confessor,  his  power  of  dis- 
pensing from  impediments, 
85-88. 

Confirmation,  before  mar- 
riage, 41. 

Consanguinity :  general  no- 
tions, determination,  mul- 
tiplications of,  164-166; 
impediment  of,  former  dis- 
cipline, 167,  168;  present 
discipline,  169 ;  dispensa- 
tion from,  170;  error  in 
dispensation  from,  95. 

Consent :  of  parents  to  mar- 
riage of  children,  66;  in 
marriage,  186;  its  neces- 
sity, qualities,  187,  188;  ob- 
ject, 189;  obstacles  to  valid 
consent,  ignorance,  190  ; 
error,  192;  knowledge  or 
conviction  of  nullity  of 
marriage,  199;  fiction,  200; 
violence  and  fear,  213 ; 
conditional  consent,  see 
Condition;  manifestation 
of  consent,  211-212;  con- 
sent in  invalid  marriage, 
231 ;  marriage  null  for 
want  of  consent,  328. 


INDEX 


331 


Consummation  of  marriage, 
9,  137. 

Contract :  of  marriage,  a 
sacrament,  2,  3;  of  be- 
trothal, 20,  26. 

Conversion,  of  non-Catholic 
party,  123. 

Crime:  origin  of  impediment 
of,  160;  present  discipline, 
161 ;  various  forms  of  im- 
pediment of,  162;  dispensa- 
tion from,  163;  implied  in 
other  dispensation,  97. 

Cumuhtio,  92. 

Custom,  impediments  and, 
80,  81. 

D 

Danger  of  death :  power  of 
dispensing  in,  by  Ordinary, 
83,  84 ;  by  priest,  85 ;  form 
of  marriage  in,  255. 

Death,  how  proved,  143. 

Decency,  public :  origin  of 
the  impediment,  177 ;  pres- 
ent discipline,  178,  179. 

Delegation,  to  dispense,  108. 

Detention,  equivalent  to  ab- 
duction, 157. 

Disparity  of  worship :  im- 
pediment of,  origin,  144; 
nature  and  extent,  145 ; 
in  case  of  doubtful  Bap- 
tism, 146,  147;  dispensation 
from,  not  implied  in  dispen- 
sation from  mixed  religion, 
147;  necessity  of  promises, 
149;  what  that  dispensation 
implies,  150 ;  celebration  of 
marriages  with,  150. 

Dispensation:  notion,  77;  his- 
tory, 78;  power  of  Pope  to 
grant,  72,  79;  of  Ordinary, 
74,  83,  84,  87-89;  of  pastor, 
confessor,  priest,  85,  87,  88 ; 
for  internal  forum,  90; 
from  several  impediments, 
92;  when  one  is  reserved, 
93 ;  error  in  dispensation,  95 ; 


dispensation  from  banns, 
55,  56 ;  implicit  dispensation 
from  impediments  of  crime, 
97,  98;  pbreption  and  sub- 
reption in,  99,  100;  execu- 
tion of,  102,  104;  in  forma 
gratiosa,  commissoria,  103 ; 
application  for,  104;  com- 
pensation for,  106,  107;  dis- 
pensation ad  cautelam,  147. 

Diriment  impediment,  nature, 
69. 

Dissolution:  of  ratified  mar- 
riage by  solemn  vow,  292, 
293 ;  by  Pontifical  dispensa- 
tion, 294 ;  of  legitimate  mar- 
riage by  religious  profes- 
sion, 293 ;  by  Papal  dispen- 
sation, 295 ;  by  Pauline 
Privilege,  296  ff. 

Divorce,  see  Separation. 

Domicile,  248-250. 

Doubt:  about  Baptism,  set 
Baptism ;  in  case  of,  mar- 
riage is  favored,  7;  about 
impediment,  35,  89. 

Duties  of  parents,  285. 

E 

Education  of  children  after 
separation  of  parents,  321, 
322. 

End  of  marriage,  5. 

Effects:  of  betrothals,  22,  24, 
27 ;  of  marriage,  282  ff . 

Engagements,  see  Betrothals. 

Error :  in  dispensation,  99, 
100;  in  marriage,  192;  about 
person,  193,  194;  about 
qualities,  195,  196;  about 
servile  condition,  197;  error 
of  law,  about  object  or  es- 
sential property  of  mar- 
riage, 198. 

Examination :  of  spouses,  34- 
38;  of  witnesses,  39. 

Execution  of  dispensation, 
102-104. 


332 


INDEX 


Father,  presumed,  287. 

Favor:  law  favors  marriage, 
7;  faith,  310. 

Fear  :  nature  and  species,  203  ; 
vitiates  consent,  by  natural 
law,  204;  by  ecclesiastical 
law,  205;  conditions  for, 
206,  207;  proof  of,  208; 
how  remedied,  209;  right 
of  challenging  a  marriage 


V&S& 


* 

at       marriage 

,    32-36, 


Fees:  for  dispensation,  106, 
107;  for  marriages,  247. 

Fiction:  invalidates  marriage, 
200;  in  what  it  consists, 
201;  its  proof,  202;  fiction 
of  law  is  sanatio  in  radice, 
322 

Form:  of  betrothals,  21,  25, 
26;  of  marriage  in  the  early 
Church,  232;  Tridentine 
discipline,  233;  decree  Ne 
temere,  234;  present  legis- 
lation,  235  ff;  conditions  for 
validity,  236,  237;  mode  of 
assistance,  241;  in  case  of 
necessity,251;  who  is  bound 
by  the  law  on  form  of  mar- 
riatre  257-260 


Guarantees:  for  dispensation 
from  impediment  of  mixed 
religion  and  disparity  of 
worship,  120,  149;  their  ne- 
cessity,  121  ;  sincerity,  form. 
122;  fulfilment,  128;  re- 
fusal  of,  129,  149. 

H 

Heresy  :  cause  of  separation, 
318;  impediment,  114;  per- 


son  brought  up  in  heresy, 
when  not  bound  by  law  on 
form  of  marriage,  258. 
Heretic:  marriage  with,  114; 
bound  by  impediments  of 
ecclesiastical  law,  14;  not 
by  form  of  marriage,  260; 
who  is  considered  as  a 
heretic,  114. 


Ignorance:  obstacle  to  valid 
consent      19Q       not 

»***•   ^ 


children,  286. 
:  nature,  68  ;  spe- 
cies>   %    Prohibitive    din- 

"I6"*'.  <?9'  Pubhc  or  .occult' 
?f  dlv'ne  or.  ecclesiastical 

£>W'  7  '  maj°r.  °f  E111.?/' 
?2'  P°wer  to  S£UP»  73'  7S  • 
to  abrogate,  76;  to  dis- 

Pens5  from'  77'79J  imPecd;- 
*?*{*.  ,ai}d  Custom  54; 
doubtful  impediments,  89; 
investigation  of  impedi- 
ments>  ^5;  minor  impedi- 
™?is>  and  dispensation, 

,  10°- 

Impotency:  nature,  137;  im- 

T  pediment,  138;  proof,  139. 

\mpuberty  see  Age. 

Indissolubihty  of  marriage, 
282,  291. 

Infidels  :  marriage  of,  and 
PaPaJL  dispensation,  295; 
a°d  Pauline  Privilege,  296. 

Interpellations:  necessity  of, 
297;  object,  298;  dispensa- 
tion  from,  299,  300,  306, 
307,  308;  form,  301,  302; 
effects,  303;  if  infidel  an-. 
swers  affirmatively,  303  ;  if 
negatively,  304;  equivalent 
refusal,  if  promises  not  sin- 
cere,  304. 


INDEX 


333 


Instructions  on  marriage,  28, 
37,  65. 

Investigation :  before  mar- 
riage, 29-31. 


Law :  civil  and  marriage,  15, 

18,  185. 

Legitimacy  of  children,  286. 
Legitimation,  288,  290. 

M 

Marriage:  as  a  sacrament,  2- 
4;  end  and  properties  of,  5; 
favored  by  law,  7;  species 
of,  8-11;  right  to,  68;  au- 
thority that  regulates,  12-18 ; 
divine,  13;  ecclesiastical,  14; 
civil  law,  15-18;  marriage 
of  unbaptized  persons,  16- 
18;  promises  of,  19,  20;  in- 
structions on  marriage,  22, 
37;  willingness  to  contract, 
36;  mixed  marriages,  banns 
in,  53,  266;  impediment  in, 
114,  120;  to  be  discouraged, 
127;  contracted  unlawfully 
or  invalidly,  129;  manner 
of  assisting  at,  150,  265, 
266;  marriage  with  mem- 
bers of  forbidden  sects,  130, 
131 ;  by  proxy,  213 ;  condi- 
tions for  its  validity  and 
licitness,  214,  215,  217;  by 
interpreter,  216;  its  licit- 
ness,  217;  conditional  mar- 
riage, 218-230;  its  lawful- 
ness under  former  legisla- 
tion, 221 ;  under  present, 
222-230;  form  of  marriage, 
232  ff;  before  whom  to  be 
contracted,  245,  246;  mar- 
riages of  conscience,  their 
nature,  271;  former  legis- 
lation about  them,  272; 
present  law,  273-276;  effects 
of  marriage,  282 ff;  revali- 
dation  of,  324  ff. 


Minister,  prohibition  to  ap- 
pear before  a  non-Catholic, 
124-126. 

Mixed  marriages,  see  Mar- 
riage. 

N 

Natural  children,  see  Legiti- 
macy. 

Necessity :  power  of  dis- 
pensing in,  87,  88;  form  of 
marriage  in  urgent,  251- 
256. 

Ne  temere  decree  and  be- 
trothals, 25;  and  marriage, 
234. 

Nullity  of  marriage:  how 
pronounced,  141 ;  convic- 
tion of,  may  nullify  con- 
sent, 199 

O 

Obreption  and  subreption,  99, 
100. 

Occult  impediment,  70. 

Orders :  impediment  of,  its 
existence,  nature,  dispensa- 
tion from,  151. 

Ordinary:  power  of,  to  dis- 
pense from  banns,  55,  56; 
to  set  up  impediments,  74; 
to  dispense  from  impedi- 
ments in  danger  of  death, 
83,  84;  in  urgent  necessity, 
87,  88;  to  dispense  from 
doubtful  impediments,  89; 
who  comes  under  the 
name  of  Ordinary,  237;  in- 
tervention of  Ordinary  in 
cases  of  separation,  323. 

Oriental  Catholics,  bound  to 
observe  form  of  marriage 
when  contracting  with 
Catholics  of  the  Latin  rite, 
257. 

P 

Parents:  consent  of,  to  mar- 
riage of  children,  66;  duties 
of,  285, 


334 


INDEX 


Pastor,  for  marriage,  236  ff, 
245,  246. 

Paternity,  presumed,  287. 

Pauline  privilege,  296;  applic- 
able also  after  long  delay, 
305 ;  special  provisions,  306- 
308;  when  is  marriage  dis- 
solved, 309 

Presumption :  in  favor  of 
faith,  310;  in  favor  of  mar- 
riage, 7 ;  of  paternity,  287. 

Place  for  celebration  of  mar- 
riage, 280,  281. 

Pope :  power  of,  to  set  up, 
72,  73;  to  abrogate,  76;  to 
dispense  from  impediments, 
79;  intervention  of,  91; 
power  to  dissolve  marriage 
merely  ratified,  294;  legiti- 
mate, 295. 

Polyandry,  polygamy,  poly- 
gyny, 6. 

Posting  marriage  announce- 
ments, 50. 

Profession,  religious :  as  an 
impediment,  see  Vow;  how 
it  dissolves  marriage  rati- 
fied, non-consummated,  293. 

Promises,  in  mixed  marriages, 
see  Guarantees. 

Proxy :  betrothal  by,  26 ;  mar- 
riage by,  213-215. 

Public  decency,  see  Decency. 

R 

Ratunt  et  consummatum,  mar- 
riage, never  dissolved,  291. 

Raium  et  non-consummatum, 
dissolved  by  religious  pro- 
fession, 292-293;  by  Papal 
decree,  294. 

Registration :  of  marriages, 
its  obligation,  form,  267  r 
in  the  baptismal  book,  268; 
by  whom,  269;  its  purpose, 
269;  difficulties,  270;  of 
marriages  of  conscience, 
276. 


Relationship,  legal:  112; 
origin  of  impediment  of, 
184 ;  present  discipline,  185 ; 
spiritual,  180-183 ;  produces 
diriment  impediment,  con- 
ditions, 183. 

Religion,  mixed;  nature,  113; 
origin  of  impediment  of, 
115;  reason,  116;  dispensa- 
tion, 117,  118;  guarantees 
required,  120;  manner  of 
assisting  at  marriage,  265, 
266. 

Religious  profession,  see  Pro- 
fession, religious. 

Renewal  of  consent  in  re- 
validation,  327-330. 

Reyalidation  of  marriage : 
simple,  324 ff;  general  con- 
ditions, 324;  renewal  of 
consent,  325 ;  mode  of  re- 
newal, 326;  when  the  im- 
pediment is  occult,  328;  if 
marriage  is  null  for  want 
of  consent,  328;  for  want 
of  required  form,  330;  re- 
validation  in  radice,  its  na- 
ture, 331;  effects,  332;  con- 
ditions, 333,  334;  by  whom 
granted,  335;  may  be 
granted  without  knowledge 
of  parties,  331,  332. 

Rights  of  spouses,  283. 

Rites  of  marriage,  see  Cele- 
bration of  marriage. 

Q 

Quasi-domicile,  248-250. 


Sacrament:  marriage  as  a, 
2-4;  consent  excluding  sac- 
rament, null,  229. 

Sonatio  in  radice,  see  Revali- 
dation. 

Second  marriages :  former 
discipline,  337,  338;  present 
law,  339. 


INDEX  335 

Sect:  those  affiliated  with  a  T 
sect,  114;  see  Mixed  mar-  Time  of  celebration  of  mar- 
riages, riage,  277-279. 

Separation    of   married   per- 
sons: 311-313;  causes,  adul-  U 
tery,   314  ff;    other   causes,  Unworthiness,  130. 
318  ff;  perpetual,  315,  316; 
temporary,   320;    education  V 
of  children  after,  321.  Vagi,  their  case  to  be  referred 

Servile  condition,  197.  to  the  Ordinary,  64. 

Simulation,  200,  202.  Violence,  see  Fear. 

Sinner,  public,  should  receive  Vow:      simple,      110,      111; 

sacrament  of  Penance  be-  solemn,   110;   diriment  im- 

fore  marriage,  132.  pediment    of,    origin,    dis- 

Societies,  marriage  with  mem-  pensation  from,  152. 

bers  of  forbidden,  130,  131.  Witnesses:    for    betrothals; 

Solemn   blessing,   see  '  Bless-  26 ;  for  marriage,  235,  241 ; 

ing,  solemn.  in  cases  of  necessity,  251; 

Solemnities  of  marriage,  see  examination    of    witnesses, 

Celebration  of  marriage.  39. 


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11 


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12 


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